EXHIBIT T3C
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CRICKET COMMUNICATIONS, INC.
13% SENIOR SECURED PAY-IN-KIND NOTES DUE 2011
INDENTURE
DATED AS OF ______________, 2004
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS TRUSTEE
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)................................................................. 7.10
(a)(2)................................................................. 7.10
(a)(3)................................................................. N.A.
(a)(4)................................................................. N.A.
(a)(5)................................................................. 7.10
(b).................................................................... 7.10
(c).................................................................... N.A.
311(a).................................................................... 7.11
(b).................................................................... 7.11
(c).................................................................... N.A.
312(a).................................................................... 2.05
(b).................................................................... 12.03
(c).................................................................... 12.03
313(a).................................................................... 7.06
(b)(1)................................................................. 10.03
(b)(2)................................................................. 7.06; 7.07
(c).................................................................... 7.06; 10.03; 12.02
(d).................................................................... 7.06
314(a).................................................................... 4.02;12.02; 12.05
(b).................................................................... 10.02
(c)(1)................................................................. 12.04
(c)(2)................................................................. 12.04
(c)(3)................................................................. N.A.
(d).................................................................... 10.03; 10.04; 10.05
(e).................................................................... 12.05
(f).................................................................... N.A.
315(a).................................................................... 7.01
(b).................................................................... 7.05; 12.02
(c).................................................................... 7.01
(d).................................................................... 7.01
(e).................................................................... 6.11
316(a)(last sentence)..................................................... 2.09
(a)(1)(A).............................................................. 6.05
(a)(1)(B).............................................................. 6.04
(a)(2)................................................................. N.A.
(b).................................................................... 6.07
(c).................................................................... 2.12
317(a)(1)................................................................. 6.08
(a)(2)................................................................. 6.09
(b).................................................................... 2.04
318(a).................................................................... 12.01
(b).................................................................... N.A.
(c).................................................................... 12.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
ARTICLE I
Definitions and Incorporation by Reference
1.01. Definitions....................................................................................... 1
1.02. Other Definitions................................................................................. 19
1.03. Incorporation by Reference of Trust Indenture Act................................................. 20
1.04. Rules of Construction............................................................................. 20
ARTICLE II
The Notes
2.01. Form and Dating................................................................................... 21
2.02. Execution and Authentication...................................................................... 22
2.03. Registrar and Paying Agent........................................................................ 22
2.04. Paying Agent to Hold Money in Trust............................................................... 23
2.05. Holder Lists...................................................................................... 23
2.06. Transfer and Exchange............................................................................. 23
2.07. Replacement Notes................................................................................. 28
2.08. Outstanding Notes................................................................................. 28
2.09. Treasury Notes.................................................................................... 28
2.10. Temporary Notes................................................................................... 29
2.11. Cancellation...................................................................................... 29
2.12. Payment of Interest; Defaulted Interest........................................................... 29
ARTICLE III
Redemption
3.01. Notices to Trustee................................................................................ 30
3.02. Selection of Notes To Be Redeemed................................................................. 30
3.03. Notice of Redemption.............................................................................. 30
3.04. Effect of Notice of Redemption.................................................................... 31
3.05. Deposit of Redemption Price....................................................................... 31
3.06. Notes Redeemed in Part............................................................................ 32
3.07. Optional Redemption............................................................................... 32
ARTICLE IV
Covenants
4.01. Payment of Notes.................................................................................. 32
4.02. Reports to Holders................................................................................ 33
4.03. Limitation on Indebtedness and Issuance of Disqualified Stock..................................... 33
4.04. Limitation on Restricted Payments................................................................. 36
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4.05. Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries........... 39
4.06. Limitation on Asset Sales......................................................................... 40
4.07. Limitation on Transactions with Affiliates........................................................ 41
4.08. Repurchase of Notes at the Option of the Holder Upon a Change of Control.......................... 42
4.09. Compliance Certificate............................................................................ 43
4.10. Limitation on Issuances of Guarantees by Restricted Subsidiaries.................................. 43
4.11. Additional Guarantees and Liens................................................................... 43
4.12. Maintenance of Properties; Insurance.............................................................. 45
4.13. Taxes and Claims.................................................................................. 45
4.14. Limitation on Liens............................................................................... 45
4.15. Sale/Leaseback Transactions....................................................................... 45
4.16. Compliance with Laws, Etc......................................................................... 46
4.17. Corporate Existence............................................................................... 46
4.18. Impairment of Rights.............................................................................. 46
4.19. Interests in Non-Owned Real Property; Cell Tower Leases........................................... 47
4.20. Further Assurances................................................................................ 47
ARTICLE V
Successor Company
5.01. When Parent, Company and Guarantors May Merge or Transfer Assets.................................. 47
ARTICLE VI
Events of Defaults and Remedies
6.01. Events of Default................................................................................. 50
6.02. Acceleration...................................................................................... 51
6.03. Other Remedies.................................................................................... 52
6.04. Waiver of Past Defaults........................................................................... 52
6.05. Control by Majority............................................................................... 52
6.06. Limitation on Suits............................................................................... 53
6.07. Rights of Holders to Receive Payment.............................................................. 53
6.08. Collection Suit by Trustee........................................................................ 53
6.09. Trustee May File Proofs of Claim.................................................................. 53
6.10. Priorities........................................................................................ 54
6.11. Undertaking for Costs............................................................................. 54
6.12. Waiver of Stay, Extension or Usury Laws........................................................... 54
ARTICLE VII
Trustee
7.01. Duties of Trustee................................................................................. 54
7.02. Rights of Trustee................................................................................. 55
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7.03. Individual Rights of Trustee...................................................................... 56
7.04. Trustee's Disclaimer.............................................................................. 56
7.05. Notice of Defaults................................................................................ 57
7.06. Reports by Trustee to Holders..................................................................... 57
7.07. Compensation and Indemnity........................................................................ 57
7.08. Replacement of Trustee............................................................................ 58
7.09. Successor Trustee by Merger....................................................................... 59
7.10. Eligibility; Disqualification..................................................................... 59
7.11. Preferential Collection of Claims Against the Company............................................. 59
ARTICLE VIII
Discharge of Indenture; Defeasance
8.01. Discharge of Liability on Notes; Defeasance....................................................... 59
8.02. Conditions to Defeasance.......................................................................... 60
8.03. Application of Trust Money........................................................................ 62
8.04. Repayment to the Company.......................................................................... 62
8.05. Indemnity for Government Obligations.............................................................. 62
8.06. Reinstatement..................................................................................... 62
ARTICLE IX
Amendments
9.01. Without Consent of Holders........................................................................ 63
9.02. With Consent of Holders........................................................................... 63
9.03. Compliance with Trust Indenture Act............................................................... 64
9.04. Revocation and Effect of Consents and Waivers..................................................... 64
9.05. Notation on or Exchange of Notes.................................................................. 65
9.06. Trustee to Sign Amendments........................................................................ 65
9.07. Payment for Consent............................................................................... 65
ARTICLE X
Collateral and Security
10.01. Security Documents................................................................................ 65
10.02. Recording and Opinions............................................................................ 66
10.03. Release of Collateral............................................................................. 67
10.04. Certificates and Opinions of Counsel.............................................................. 68
10.05. Certificates of the Trustee....................................................................... 68
10.06. Authorization of Actions to Be Taken by the Trustee Under the Security Documents.................. 68
10.07. Authorization of Receipt and Distribution of Funds by the Trustee Under the Security Documents.... 69
10.08. Termination of Security Interest.................................................................. 69
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10.09. Trustee Serving as Collateral Agent; Amendments or Supplements to, or Replacements of, the
Security Documents............................................................................................ 69
ARTICLE XI
Guarantees
11.01. Guarantees........................................................................................ 70
11.02. Limitation on Liability........................................................................... 72
11.03. Releases of Guarantees............................................................................ 72
11.04. Successors and Assigns............................................................................ 72
11.05. No Waiver......................................................................................... 73
11.06. Modification...................................................................................... 73
11.07. Execution of Supplemental Indenture for Future Guarantors......................................... 73
11.08. Non-Impairment.................................................................................... 73
ARTICLE XII
Miscellaneous
12.01. Trust Indenture Act Controls...................................................................... 73
12.02. Notices........................................................................................... 73
12.03. Communication by Holders with Other Holders....................................................... 74
12.04. Certificate and Opinion as to Conditions Precedent................................................ 74
12.05. Statements Required in Certificate or Opinion..................................................... 75
12.06. Rules by Trustee, Paying Agent and Registrar...................................................... 75
12.07. Legal Holidays.................................................................................... 75
12.08. GOVERNING LAW..................................................................................... 75
12.09. No Recourse Against Others........................................................................ 75
12.10. Successors........................................................................................ 76
12.11. Counterpart Originals............................................................................. 76
12.12. Table of Contents; Headings....................................................................... 76
Exhibit A - Form of Note
Exhibit B - Form of Supplemental Indenture
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INDENTURE dated as of ________________, 2004, among CRICKET
COMMUNICATIONS, INC., a Delaware corporation (the "Company"), LEAP WIRELESS
INTERNATIONAL, INC., a Delaware corporation, as guarantor (the "Parent"), the
Guarantors (as defined herein), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders (as defined herein)
of (a) the Company's 13% Senior Secured Pay-in-Kind Notes due 2011 issued on the
date hereof (the "Original Notes"), and (b) any PIK Notes (as defined herein)
that may be issued under this Indenture (all such Notes in clauses (a) and (b)
being referred to collectively as the "Notes"). On the date hereof, $350,000,000
in aggregate principal amount of Original Notes will be initially issued. The
Company may issue PIK Notes from time to time hereunder in payment of interest
on the Notes pursuant to the terms hereof.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.01. Definitions.
"Adjusted Consolidated Net Income" means, for any period, the
aggregate consolidated net income (or loss) of the Parent, the Company and the
Restricted Subsidiaries for such period determined in conformity with GAAP;
provided that the following items shall be excluded in computing Adjusted
Consolidated Net Income (without duplication):
(i) the net income of any other Person that is not a
Restricted Subsidiary, except to the extent of the amount of dividends or other
distributions actually paid to the Parent, the Company or any of the Restricted
Subsidiaries by such other Person during such period;
(ii) solely for the purposes of calculating the amount of
Restricted Payments that may be made pursuant to Section 4.04(a)(4)(C) (and in
such case, except to the extent includable pursuant to clause (i) above), the
net income (or loss) of any other Person accrued prior to the date it becomes a
Restricted Subsidiary or is merged into or consolidated with the Parent, the
Company or any of the Restricted Subsidiaries or all or substantially all of the
property and assets of the other Person are acquired by the Parent, the Company
or any of the Restricted Subsidiaries;
(iii) the net income of any Restricted Subsidiary to the
extent that the declaration or payment of dividends or similar distributions by
such Restricted Subsidiary of such net income is not at the time of
determination permitted by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Restricted Subsidiary;
(iv) any gains or losses (on an after-tax basis)
attributable to sales of assets of the Parent, the Company or any of the
Restricted Subsidiaries other than in the ordinary course of business;
(v) solely for purposes of calculating the amount of
Restricted Payments that may be made pursuant to Section 4.04(a)(4)(C), any
amount paid or accrued as dividends on Preferred Stock of the Parent, the
Company or any of the Restricted Subsidiaries owned by Persons other than the
Parent, the Company or any of the Restricted Subsidiaries;
(vi) all extraordinary gains and extraordinary losses,
including charges resulting from impairments of indefinite-lived or long-lived
assets of the Parent, the Company or any of the Restricted Subsidiaries;
(vii) any compensation expense paid or payable solely with
Capital Stock (other than Disqualified Stock) of the Parent or any options,
warrants or other rights to acquire Capital Stock (other than Disqualified
Stock) of the Parent; and
(viii) the cumulative effect of a change in accounting
principles.
"Adjusted Consolidated Net Tangible Assets" means the total
amount of assets of the Parent, the Company and the Restricted Subsidiaries
(less applicable depreciation, amortization and other valuation reserves),
excluding write-ups of capital assets (other than write-ups of tangible assets
in connection with accounting for acquisitions made in conformity with GAAP),
after deducting therefrom (i) all current liabilities of the Parent, the Company
and the Restricted Subsidiaries (excluding intercompany items) and (ii) all
goodwill, trade names, trademarks, patents, copyrights, organizational and
developmental expenses, unamortized debt discount and expense, unamortized
deferred charges and other like intangibles (other than FCC license acquisition
costs), all as set forth on the most recent quarterly or annual consolidated
balance sheet information of the Parent, the Company and the Restricted
Subsidiaries, prepared in conformity with GAAP.
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise. For purposes of
Section 4.07 only, "Affiliate" shall also mean any beneficial owner of shares
representing more than 10% of the total voting power of the Voting Stock (on a
fully diluted basis) of the Parent or the Company or of rights or warrants to
purchase such Voting Stock (whether or not currently exercisable) and any Person
who would be an Affiliate of any such beneficial owner pursuant to the first
sentence hereof.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Asset Sale" means any sale, transfer or other disposition
(including by way of merger, consolidation or Sale/Leaseback Transaction) in one
transaction or a series of related transactions by the Parent, the Company or
any of the Restricted Subsidiaries to any Person (other than the Parent, the
Company or any of the Restricted Subsidiaries) of (i) all or any of the
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Capital Stock of the Company or any Restricted Subsidiary, (ii) all or
substantially all of the property and assets of an operating unit or business of
the Parent, the Company or any of the Restricted Subsidiaries or (iii) any other
property and assets of the Parent, the Company or any of the Restricted
Subsidiaries outside the ordinary course of business of the Parent, the Company
or such Restricted Subsidiary and, in each case, that is not governed by the
provisions of Section 5.01; provided that "Asset Sale" shall not include (a)
sales or other dispositions of inventory in the ordinary course of business, (b)
sales, transfers or other dispositions of assets constituting a Restricted
Payment permitted to be made under Section 4.04, (c) sales or other dispositions
of assets or Capital Stock by the Parent, the Company or a Restricted Subsidiary
to the Parent, the Company or another Restricted Subsidiary, (d) sales or other
dispositions of assets, not to exceed $25.0 million in fair market value in any
calendar year, for consideration at least equal to the fair market value of the
assets sold or disposed of (as determined in good faith by the Board of
Directors of the Parent, whose good faith determination shall be conclusive and
evidenced by a Board Resolution), provided that at least 75% of the fair market
value of the consideration received (as determined in good faith by the Board of
Directors of the Parent, whose good faith determination shall be conclusive and
evidenced by a Board Resolution) consists of property or assets (other than
current assets) of a nature or type that are used in a business, or a company
having property or assets or engaged in a business, similar or related to the
nature or type of the property or assets of, or business of, the Parent, the
Company and the Restricted Subsidiaries, or (e) sales or other dispositions of
obsolete or excess assets with a fair market value not in excess of $5.0 million
per calendar year (as certified in an Officer's Certificate). Notwithstanding
the foregoing, the sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company and its Subsidiaries taken as a
whole will be governed by the provisions of Sections 4.08 and/or 5.01 and not by
the provisions of Section 4.06.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate implicit in such transaction, determined in accordance with GAAP)
of the total obligations of the lessee for rental payments during the remaining
term of the lease included in such Sale/Leaseback Transaction (including any
period for which such lease has been extended or may be, at the option of the
lessor, extended).
"Average Life" means, at any date of determination with
respect to any Indebtedness, the quotient obtained by dividing (i) the sum of
the products of (a) the number of years from such date of determination to the
dates of each successive scheduled principal payment of such Indebtedness and
(b) the amount of such principal payment by (ii) the sum of all such principal
payments.
"Board of Directors" means the board of directors (for a
corporation) or similar governing body (for other entities) of a Person, or any
committee thereof duly authorized to act on behalf of such Board of Directors.
"Board Resolution" means a copy of a resolution certified by a
secretary or assistant secretary of a Person to have been duly adopted by the
Board of Directors of such Person and to be in full force and effect on the date
of such certification and delivered to the Trustee.
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"Business Day" means each day which is not a Legal Holiday.
"Capital Expenditures" means any expense or charge incurred by
a Person that would be classified under GAAP as a capital expenditure.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) in the equity of such Person, whether now
outstanding or issued after the Closing Date, including, without limitation, all
Common Stock and Preferred Stock.
"Capitalized Lease" means, as applied to any Person, any lease
of any property (whether real, personal or mixed) of which the discounted
present value of the rental obligations of such Person as lessee in conformity
with GAAP, is required to be capitalized on the balance sheet of such Person.
"Capitalized Lease Obligations" means the discounted present
value of the rental obligations under a Capitalized Lease.
"Cash Equivalents" means:
(i) United States dollars;
(ii) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or instrumentality of the
United States government (provided that the full faith and credit of the United
States is pledged in support of those securities) having maturities of not more
than six months from the date of acquisition;
(iii) certificates of deposit and eurodollar time deposits
with maturities of six months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case, with any domestic commercial bank having capital and
surplus in excess of $250.0 million and a Thomson Bank Watch Rating of "B" or
better;
(iv) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses (ii) and
(iii) above entered into with any financial institution meeting the
qualifications specified in clause (iii) above;
(v) commercial paper having the highest rating obtainable
from Xxxxx'x Investors Service, Inc. or Standard & Poor's Corporation and, in
each case, maturing within six months after the date of acquisition; and
(vi) money market funds at least 95% of the assets of
which constitute Cash Equivalents of the kinds described in clauses (i) through
(v) of this definition.
"Change of Control" means such time as (i) a "person" or
"group" (within the meaning of Section 13(d) or 14(d)(2) under the Exchange Act)
becomes the ultimate "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of more than 35% of the total voting
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power of the Voting Stock of the Parent or the Company on a fully diluted basis;
or (ii) individuals who on the Closing Date constitute the Board of Directors of
the Parent or the Company (together with any new directors whose election by
such Board of Directors or whose nomination for election by the Parent's or the
Company's stockholders, as applicable, was approved by a vote of at least a
majority of the members of the Board of Directors of the Parent or the Company,
as applicable, then in office who either were members of the Board of Directors
of the Parent or the Company, as applicable, on the Closing Date or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the members of the Board of Directors of the
Parent or the Company, as applicable, then in office; or (ii) the Company ceases
to be a Subsidiary of the Parent.
"Closing Date" means the date of this Indenture, on which date
the Original Notes were originally issued hereunder.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means all property and assets of the Company or
any Guarantor with respect to which from time to time a Lien is granted as
security for the Notes or the Guarantees pursuant to the applicable Security
Documents.
"Collateral Agent" means Xxxxx Fargo Bank, National
Association, in its capacity as collateral agent under the Security Documents,
or any successor thereto.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's equity, other than Preferred
Stock of such Person, whether now outstanding or issued after the Closing Date,
including without limitation, all series and classes of such common stock.
"Company" means the party named as such in the preamble of
this Indenture until a successor replaces it and, thereafter, means the
successor and, for purposes of any provision contained herein and required by
the TIA, each other obligor on the indenture securities.
"Consolidated EBITDA" means, for any period, Adjusted
Consolidated Net Income for such period plus, to the extent such amount was
deducted in calculating Adjusted Consolidated Net Income (i) Consolidated
Interest Expense, (ii) income taxes (other than income taxes (either positive or
negative) attributable to extraordinary and non-recurring gains or losses or
sales of assets), (iii) depreciation expense, (iv) amortization expense, and (v)
all other non-cash items reducing Adjusted Consolidated Net Income (other than
items that will require cash payments and for which an accrual or reserve is, or
is required by GAAP to be, made), less all non-cash items increasing Adjusted
Consolidated Net Income, all as determined on a consolidated basis in conformity
with GAAP; provided that, if any Restricted Subsidiary is not a Wholly Owned
Restricted Subsidiary, Consolidated EBITDA shall be reduced (to the extent not
otherwise reduced in accordance with GAAP) by an amount equal to (a) the amount
of the Adjusted Consolidated Net Income attributable to such Restricted
Subsidiary multiplied by (b) the percentage ownership interest in the income of
such Restricted Subsidiary not owned on the last day of such period by the
Parent, the Company or any of the Restricted Subsidiaries.
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"Consolidated Indebtedness" means the consolidated
Indebtedness of the Parent, the Company and the Restricted Subsidiaries
determined in accordance with GAAP consistently applied, but not including
consolidation of Indebtedness of Unrestricted Subsidiaries.
"Consolidated Interest Expense" means, for any period, the
total consolidated interest expense of the Parent, the Company and the
Restricted Subsidiaries, plus, to the extent not included in such interest
expense: (i) interest expense attributable to Capitalized Lease Obligations and
Attributable Debt; (ii) amortization of debt discount and debt issuance cost;
(iii) capitalized interest; (iv) non-cash interest payments; (v) commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing; (vi) net costs under Interest Rate Agreements
(including amortization of fees); (vii) dividends in respect of any Disqualified
Stock held by Persons other than the Parent, the Company or a Restricted
Subsidiary; (viii) interest expense attributable to deferred payment
obligations; and (ix) interest expense on Indebtedness of another Person to the
extent that such Indebtedness is guaranteed by the Parent, the Company or a
Restricted Subsidiary.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement.
"Custodian" means the Trustee, as custodian with respect to
the Notes in global form, or any successor entity thereto.
"Debt to Consolidated EBITDA Ratio" means, as of any date of
determination (the "Calculation Date"), the ratio of (a) Consolidated
Indebtedness as of the Calculation Date to (b) Consolidated EBITDA for the four
most recent full fiscal quarters ending immediately prior to the Calculation
Date and for which financial statements have been delivered to the Trustee and
the Holders in accordance with Section 4.02, determined on a pro forma basis
after giving effect to all acquisitions or dispositions of assets made by the
Parent, the Company and any of the Restricted Subsidiaries from the beginning of
such four-quarter period through and including such Calculation Date (including
any related financing transactions) as if such acquisitions and dispositions had
occurred at the beginning of such four-quarter period. In addition, for purposes
of making the computation referred to above, (i) acquisitions that have been
made by the Parent, the Company or any of the Restricted Subsidiaries, including
through mergers or consolidations and including any related financing
transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be deemed to have
occurred on the first day of the four-quarter reference period and Consolidated
EBITDA for such reference period shall be calculated without giving effect to
clause (viii) of the proviso set forth in the definition of Adjusted
Consolidated Net Income, and (ii) the Consolidated EBITDA attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses disposed of prior to the Calculation Date, shall be excluded.
"Debt to Consolidated EBITDA less Capital Expenditures Ratio"
means, as of any date of determination (the "Calculation Date"), the ratio of
(a) Consolidated Indebtedness as of the Calculation Date to (b) Consolidated
EBITDA less any Capital Expenditures by the Parent, the Company and the
Restricted Subsidiaries for the four most recent full fiscal quarters ending
immediately prior to the Calculation Date and for which financial statements
have been delivered to the Trustee and the Holders in accordance with Section
4.02, determined on a pro
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forma basis after giving effect to all acquisitions or dispositions of assets
made by the Parent, the Company and any of the Restricted Subsidiaries from the
beginning of such four-quarter period through and including such Calculation
Date (including any related financing transactions) as if such acquisitions and
dispositions had occurred at the beginning of such four-quarter period. In
addition, for purposes of making the computation referred to above, (i)
acquisitions that have been made by the Parent, the Company or any of the
Restricted Subsidiaries, including through mergers or consolidations and
including any related financing transactions, during the four-quarter reference
period or subsequent to such reference period and on or prior to the Calculation
Date shall be deemed to have occurred on the first day of the four-quarter
reference period and Consolidated EBITDA for such reference period shall be
calculated without giving effect to clause (viii) of the proviso set forth in
the definition of Adjusted Consolidated Net Income, and (ii) the Consolidated
EBITDA attributable to discontinued operations, as determined in accordance with
GAAP, and operations or businesses disposed of prior to the Calculation Date,
shall be excluded.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Definitive Notes" means one or more certificated Notes
registered in the name of the Holder thereof and issued in accordance with
Section 2.06 hereof, substantially in the form of Exhibit A hereto, except that
such Note shall not bear the Global Note Legend and shall not have the "Schedule
of Exchanges of Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provisions of this Indenture.
"Disinterested Director" means, with respect to any
transaction, including an acquisition of FCC wireless licenses, a member of the
Board of Directors of the Parent who is not an officer or employee of the
Parent, the Company or a Subsidiary and would not be a party to, or have a
financial interest in, such transaction. For purposes of this definition, no
person would be deemed not to be a Disinterested Director solely because such
person holds Capital Stock of the Parent.
"Disqualified Stock" means any class or series of Capital
Stock of any Person that by its terms or otherwise is (i) required to be
redeemed prior to the Stated Maturity of the Notes, (ii) redeemable at the
option of the Holder of such class or series of Capital Stock at any time prior
to the Stated Maturity of the Notes or (iii) convertible into or exchangeable
for Capital Stock referred to in clause (i) or (ii) above or Indebtedness having
a scheduled maturity prior to the Stated Maturity of the Notes; provided that
any Capital Stock that would not constitute Disqualified Stock but for
provisions thereof giving Holders thereof the right to require such Person to
repurchase or redeem such Capital Stock upon the occurrence of an "asset sale"
or "change of control" occurring prior to the Stated Maturity of the Notes shall
not constitute Disqualified Stock if the "asset sale" or "change of control"
provisions applicable to such Capital Stock are no more favorable to the Holders
of such Capital Stock than the provisions contained in Sections 4.06 and 4.08
and such Capital Stock specifically provides that such Person will not
-7-
repurchase or redeem any such stock pursuant to such provision prior to the
Company's repurchase of such Notes as are required to be repurchased pursuant to
Sections 4.06 and 4.08.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"fair market value" means the price that would be paid in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to buy,
as determined in good faith by the Board of Directors of the Parent, whose
determination shall be conclusive if evidenced by a Board Resolution.
"FCC" means the Federal Communications Commission.
"GAAP" means generally accepted accounting principles in the
United States of America, including, without limitation, those set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession,
as in effect from time to time.
"Global Notes" means, individually and collectively, each of
the permanent global Note substantially in the form of Exhibit A hereto that
bears the Global Note Legend and that has the "Schedule of Exchanges of
Interests in the Global Note" attached thereto, and that is deposited with or on
behalf of and registered in the name of the Depositary.
"Global Note Legend" means the legend set forth in Section
2.06(f), which is required to be placed on the Global Note issued under this
Indenture.
"Guarantees" mean any guarantees by the Guarantors of the
Guaranteed Obligations.
"guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any other
Person and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Indebtedness of such other Person (whether arising by virtue of partnership
arrangements, or by agreements to keep-well, to purchase assets, goods,
securities or services (unless such purchase arrangements are on arm's length
terms and are entered into in the ordinary course of business), to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided that the term "guarantee"
shall not include endorsements for collection or deposit in the ordinary course
of business. The term "guarantee" used as a verb has a corresponding meaning.
"Guarantor" means the Parent, all Restricted Subsidiaries of
the Parent (other than the Company), and all Restricted Subsidiaries of the
Company, each of which shall execute a
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Guarantee in accordance with the provisions of this Indenture, and their
respective successors and assigns.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" means the Person in whose name a Note is registered
on the Registrar's books.
"Incur" means, with respect to any Indebtedness, to incur,
create, issue, assume, guarantee or otherwise become liable for or with respect
to, or become responsible for, the payment of, contingently or otherwise, such
Indebtedness, including an "Incurrence" of Indebtedness by reason of a Person
becoming a Restricted Subsidiary; provided that neither the accrual of interest
nor the accretion of original issue discount shall be considered an Incurrence
of Indebtedness.
"Indebtedness" means, with respect to any Person at any date
of determination (without duplication):
(i) all indebtedness of such Person for borrowed money;
(ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(iii) all obligations of such Person in respect of letters
of credit or other similar instruments (including reimbursement obligations with
respect thereto), other than standby letters of credit and performance bonds
entered into in the ordinary course of business of such Person to the extent
such letters of credit are not drawn upon or, if drawn upon, to the extent such
drawing is reimbursed no later than the third Business Day following receipt by
such Person of a demand for reimbursement;
(iv) all obligations of such Person to pay the deferred
and unpaid purchase price of property or services, except Trade Payables;
(v) all Capitalized Lease Obligations and all
Attributable Debt;
(vi) all Indebtedness of other Persons secured by a Lien
on any asset of such Person, whether or not such Indebtedness is assumed by such
Person; provided that the amount of such Indebtedness shall be the lesser of (a)
the fair market value of such asset at such date of determination and (b) the
amount of such Indebtedness;
(vii) all Indebtedness of other Persons guaranteed by such
Person to the extent such Indebtedness is guaranteed by such Person;
(viii) Disqualified Stock; and
(ix) to the extent not otherwise included in this
definition, obligations under Currency Agreements and Interest Rate Agreements.
-9-
For purposes of clause (viii), Disqualified Stock shall be
valued at the maximum fixed redemption, repayment or repurchase price, which
shall be calculated in accordance with the terms of such Disqualified Stock as
if such Disqualified Stock were repurchased on any date on which Indebtedness
shall be required to be determined under this Indenture; provided, however, that
if such Disqualified Stock is not then permitted to be redeemed, repaid or
repurchased, the redemption, repayment or repurchase price shall be the book
value of such Disqualified Stock. The amount of Indebtedness of any Person at
any date shall be the outstanding balance at such date (or in the case of a
revolving credit or other similar facility, the total amount of funds
outstanding and/or available on the date of determination) of all unconditional
obligations as described above and, with respect to contingent obligations, the
maximum liability upon the occurrence of the contingency giving rise to the
obligation, provided (1) that the amount outstanding at any time of any
Indebtedness issued with original issue discount is the face amount of such
Indebtedness less the unamortized portion of the original issue discount of such
Indebtedness at the time of its issuance as determined in conformity with GAAP,
(2) money borrowed at the time of the Incurrence of any Indebtedness in order to
pre-fund the payment of interest on such Indebtedness shall be deemed not to be
"Indebtedness" so long as such money is held to secure the payment of such
interest, (3) contingent obligations arising in connection with the acquisition
of any business or Person, based on the future performance of such business or
Person, shall not constitute Indebtedness except to the extent such obligations
are not paid within seven Business Days of the date such contingency is resolved
under GAAP and are recorded as a liability on the books of the Parent, the
Company and their Subsidiaries and (4) liabilities for federal, state, local or
other taxes shall not constitute Indebtedness.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Indenture Documents" means (a) this Indenture, the Notes and
the Security Documents and (b) any other related document or instrument executed
and delivered pursuant to any Indenture Document described in clause (a) of this
definition evidencing or governing Obligations.
"Indirect Participant" means a Person who holds a beneficial
interest in the Global Note through a Participant.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement, or other similar agreement or
arrangement.
"Investment" in any Person means any direct or indirect
advance, loan or other extension of credit (including, without limitation, by
way of guarantee or similar arrangement; but excluding advances to customers in
the ordinary course of business that are, in conformity with GAAP, recorded as
accounts receivable on the balance sheet of the Parent, the Company or the
Restricted Subsidiaries) or capital contribution to (by means of any transfer of
cash or other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition of Capital Stock,
bonds, notes or other similar instruments issued by, such Person and shall
include (i) the designation of a Restricted Subsidiary as an Unrestricted
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Subsidiary and (ii) the fair market value of the Capital Stock (or any other
Investment), held by the Parent, the Company or any of the Restricted
Subsidiaries, of (or in) any Person that has ceased to be a Restricted
Subsidiary. For purposes of the definition of "Unrestricted Subsidiary" and
Section 4.04, (a) the amount of or a reduction in an Investment shall be equal
to the fair market value thereof at the time such Investment is made or reduced
and (b) in the event the Parent, the Company or any Restricted Subsidiary makes
an Investment by transferring assets to any Person and as part of such
transaction receives Net Cash Proceeds, the amount of such Investment shall be
the fair market value of the assets less the amount of Net Cash Proceeds so
received, provided that the Net Cash Proceeds are applied in accordance with
Section 4.06(b)(i) or (ii).
"Leverage Ratios" means the Debt to Consolidated EBITDA Ratio
and the Debt to Consolidated EBITDA less Capital Expenditures Ratio.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, without limitation, any
conditional sale or other title retention agreement or lease in the nature
thereof or any agreement to give any security interest).
"Moody's" means Xxxxx'x Investors Service, Inc. and its
successors.
"Mortgaged Property" includes each parcel of real property and
the improvements thereto with respect to which a Mortgage is granted pursuant to
Section 4.11.
"Mortgages" means a mortgage, deed of trust, assignment of
leases and rents, leasehold mortgage or other security document granting a Lien
on any Mortgaged Property to secure the Obligations.
"Net Cash Proceeds" means, (i) with respect to any Asset Sale,
the proceeds of such Asset Sale in the form of cash or Cash Equivalents,
including payments in respect of deferred payment obligations (to the extent
corresponding to the principal, but not interest, component thereof) when
received in the form of cash or Cash Equivalents (except to the extent such
obligations are financed or sold with recourse to the Parent, the Company or any
Restricted Subsidiary) and proceeds from the conversion of other property
received when converted to cash or Cash Equivalents, net of (a) brokerage
commissions and other fees and expenses (including fees and expenses of counsel
and investment bankers) related to such Asset Sale, (b) provisions for all taxes
as a result of such Asset Sale, (c) payments made to repay Indebtedness
outstanding at the time of such Asset Sale that is secured by a Lien on the
property or assets sold and (d) appropriate amounts to be provided by the
Parent, the Company or any Restricted Subsidiary as a reserve against any
liabilities associated with such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale, all as determined in conformity with GAAP and
(ii) with respect to any issuance or sale of Capital Stock, the proceeds of such
issuance or sale in the form of cash or Cash Equivalents, including payments in
respect of deferred payment obligations (to the extent corresponding to the
principal, but not interest, component thereof) when received in the form of
cash or Cash Equivalents (except to the extent such obligations are financed or
sold with recourse to the Parent, the Company or any Restricted Subsidiary) and
proceeds from the conversion of other
-11-
property received when converted to cash or Cash Equivalents, net of attorney's
fees, accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees incurred in connection with
such issuance or sale and net of taxes paid or payable as a result thereof.
"Notes" means the Notes issued under this Indenture, and
includes the Original Notes and the PIK Notes.
"Obligations" means all obligations of the Company and the
Guarantors under the Indenture, the Notes and the other Indenture Documents,
including obligations to the Trustee and the Collateral Agent whether for
payment of principal of, premium, if any, or interest on the Notes and all other
monetary obligations of the Company and the Guarantors under the Indenture, the
Notes and the other Indenture Documents, whether for fees, expenses,
indemnification or otherwise.
"Offer to Purchase" means an offer by the Company to purchase
Notes from the Holders under Section 4.06(b) or 4.08(a), which shall be
commenced by mailing a notice to the Trustee and each Holder stating:
(i) the covenant pursuant to which the offer is being
made and that all Notes validly tendered will be accepted for payment on a pro
rata basis;
(ii) the purchase price and the date of purchase (which
shall be a Business Day no earlier than 30 days nor later than 60 days from the
date such notice is mailed) (the "Payment Date");
(iii) that any Note not tendered will continue to accrue
interest pursuant to its terms;
(iv) that, unless the Company defaults in the payment of
the purchase price, any Note accepted for payment pursuant to the Offer to
Purchase shall cease to accrue interest or original issue discount on and after
the Payment Date;
(v) that Holders electing to have a Note purchased
pursuant to the Offer to Purchase will be required to surrender the Note,
together with the form entitled "Option of the Holder to Elect Purchase" on the
reverse side of the Note completed, to the Paying Agent at the address specified
in the notice prior to the close of business on the Business Day immediately
preceding the Payment Date;
(vi) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the close of business on
the third Business Day immediately preceding the Payment Date, a telegram,
facsimile transmission or letter setting forth the name of such Holder, the
principal amount of Notes delivered for purchase and a statement that such
Holder is withdrawing his election to have such Notes purchased; and
(vii) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered; provided that each Note purchased shall be in
an integral multiple of $100 of the principal
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amount at maturity of the Notes and each new Note issued shall be in a principal
amount at maturity of $100 or integral multiples thereof.
On the Payment Date, the Company shall: (a) accept for payment
on a pro rata basis Notes or portions thereof validly tendered pursuant to an
Offer to Purchase; (b) deposit with the Paying Agent money sufficient to pay the
purchase price of all Notes or portions thereof so accepted; and (c) deliver, or
cause to be delivered, to the Trustee all Notes or portions thereof so accepted
together with an Officer's Certificate specifying the Notes or portions thereof
accepted for payment by the Company. The Paying Agent shall promptly mail to the
Holders of Notes so accepted payment in an amount equal to the purchase price,
and the Trustee shall promptly authenticate and mail to such Holders a new Note
equal in principal amount to any unpurchased portion of the Note surrendered;
provided that each Note purchased shall be in an integral multiple of $100 of
the principal amount at maturity of the Notes and each new Note issued shall be
in a principal amount at maturity of $100 or integral multiples thereof. If,
pursuant to an Offer to Purchase, a Note is purchased on or after an interest
record date but on or prior to the related interest payment date, then any
accrued and unpaid interest shall be paid to the Person in whose name such Note
was registered at the close of business on such record date. The Parent and the
Company will publicly announce the results of an Offer to Purchase as soon as
practicable after the Payment Date. The Trustee shall act as the Paying Agent
for an Offer to Purchase. The Company will comply with Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable, in the event that the Company
is required to repurchase Notes pursuant to an Offer to Purchase. To the extent
that the provisions of any applicable federal or state securities laws or
regulations conflict with the provision of this Indenture relating to an Offer
to Purchase, the Company will comply with such laws or regulations and will not
be deemed to have breached such provisions of this Indenture by virtue thereof.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of
the Company. "Officer" of a Guarantor has a correlative meaning.
"Officer's Certificate" of any Person means a certificate
signed on behalf of such Person by the principal executive officer, the
principal accounting officer or the principal financial officer of such Person.
"Opinion of Counsel" means a written opinion (subject to
customary assumptions and exclusions) from legal counsel who is reasonably
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company, a Guarantor or the Trustee.
"Original Notes" means the $350,000,000 original principal
amount of 13% Senior Secured Pay-in-Kind Notes due 2011, issued on the Closing
Date under the terms of this Indenture.
"Parent" means the party named as such in the preamble of this
Indenture until a successor replaces it and, thereafter, means the successor.
-13-
"Participant" means, with respect to the Depositary, a Person
who has an account with the Depositary.
"Permitted Investment" means:
(i) an Investment in the Company, any Restricted
Subsidiary or a Person that, as a result of such Investment becomes a Restricted
Subsidiary, provided that such Person's primary business is related, ancillary
or complementary to the businesses of the Parent, the Company and the Restricted
Subsidiaries on the date of such Investment;
(ii) Temporary Cash Investments;
(iii) payroll, travel and similar advances in the ordinary
course of business to cover matters that are expected at the time of such
advances ultimately to be treated as expenses in accordance with GAAP that do
not in the aggregate exceed $3.0 million at any time outstanding;
(iv) stock, obligations or securities received in
satisfaction of judgments;
(v) Investments in prepaid expenses, negotiable
instruments held for collection, and lease, utility and worker's compensation,
performance and other similar deposits made in the ordinary course of business;
(vi) Interest Rate Agreements and Currency Agreements
designed solely to protect the Parent, the Company and the Restricted
Subsidiaries against fluctuations in interest rates or foreign currency exchange
rates;
(vii) loans or advances to officers or employees of the
Parent, the Company or any Restricted Subsidiary that do not in the aggregate
exceed $1.0 million at any time outstanding;
(viii) Investments existing on the Closing Date;
(ix) Investments made as a result of the receipt of
non-cash consideration from an Asset Sale that was made in compliance with
Section 4.06; and
(x) Investments in securities received in satisfaction of
accounts receivable pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy of the obligor on such accounts receivable.
"Permitted Liens" means:
(i) Liens for taxes, assessments, governmental charges or
claims that are not yet due and payable or that are being contested in good
faith by appropriate legal proceedings promptly instituted and diligently
conducted and for which a reserve or other appropriate provision, if any, as
shall be required in conformity with GAAP shall have been made;
-14-
(ii) statutory and common law Liens of landlords and
carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or other
similar Liens arising in the ordinary course of business and with respect to
amounts not yet delinquent or being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a reserve
or other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made;
(iii) Liens (other than any Lien imposed by ERISA) incurred
or deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security;
(iv) Liens incurred or deposits made (including deposits
made to the FCC) to secure the performance of tenders, bids, leases, statutory
or regulatory obligations, bankers' acceptances, surety and appeal bonds,
government contracts, performance and return-of-money bonds and other
obligations of a similar nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money);
(v) easements, rights-of-way, municipal and zoning
ordinances and similar charges, encumbrances, title defects or other
irregularities that do not materially interfere with the ordinary course of
business of the Parent, the Company or any of the Restricted Subsidiaries;
(vi) Liens (including extensions and renewals thereof and
including any interest or title of a lessor in the property subject to any
Capitalized Lease) upon real or personal property acquired after the Closing
Date; provided that (a) such Lien is created solely for the purpose of securing
Indebtedness (including any Capitalized Lease) Incurred, in accordance with
clause (v) of the definition of Permitted Debt, and is created prior to, at the
time of or within six months after the later of the acquisition, the completion
of construction or the commencement of full operation of such property or is
granted to secure indebtedness incurred to Refinance any Indebtedness previously
so secured, and (b) any such Lien shall not extend to or cover any property or
assets other than such item of property or assets and any improvements on such
item;
(vii) any interest or title of a lessor in the property
subject to any operating lease;
(viii) Liens on property of any Person existing at the time
such Person becomes, or becomes a part of, any Restricted Subsidiary; provided
that such Liens were not created or incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary and do not extend
to or cover any property or assets of the Parent, the Company or any Restricted
Subsidiary other than the property or assets acquired;
(ix) Liens in favor of the Parent, the Company or any
Restricted Subsidiary;
(x) Liens arising from the rendering of a final judgment
or order against the Parent, the Company or any Restricted Subsidiary that does
not give rise to an Event of Default;
(xi) Liens arising by reason of deposits necessary to
obtain standby letters of credit in the ordinary course of business (including
deposits necessary to obtain standby letters of credit);
-15-
(xii) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties not yet due and
payable in connection with the importation of goods;
(xiii) Liens encumbering customary initial deposits and
margin deposits, and other Liens that are within the general parameters
customary in the industry and incurred in the ordinary course of business, in
each case, securing Indebtedness under Interest Rate Agreements and Currency
Agreements designed solely to protect the Parent, the Company or any of the
Restricted Subsidiaries from fluctuations in interest rates or foreign currency
exchange rates;
(xiv) Liens on wireless licenses issued by the FCC to
secure obligations in favor of the FCC;
(xv) Liens existing on the Closing Date;
(xvi) Liens on any assets or Capital Stock of the Parent,
the Company or the Restricted Subsidiaries created in favor of the Holders; and
(xvii) Liens securing Indebtedness which is Incurred to
Refinance secured Indebtedness which is permitted to be Incurred under Section
4.03(b)(ii); provided that such Liens do not extend to or cover any property or
assets of the Parent, the Company or any Restricted Subsidiary other than the
property or assets securing the Indebtedness being Refinanced; and provided
further, that if the property or assets securing the Indebtedness being
Refinanced consist of one or more FCC wireless licenses, such Liens may also
extend to or cover the outstanding Capital Stock of one or more corporations
that (A) own such licenses and (B) do not own any other material assets.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"PIK Notes" means any 13% Senior Secured Pay-in-Kind Notes due
2011, issued in lieu of cash payment of interest on the Notes under the terms of
this Indenture.
"Pledge Agreement" means the Pledge Agreement dated
__________, 2004 among the Company, the Grantors (as defined therein) and the
Collateral Agent.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference equity,
whether now outstanding or issued after the Closing Date, including, without
limitation, all series and classes of such preferred stock or preference stock.
"Qualified Proceeds" means the Net Cash Proceeds received by
the Parent on or after the Closing Date from the issuance and sale of its
Capital Stock (other than Disqualified Stock) to a Person that is not a
Subsidiary of the Parent.
-16-
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Restricted Subsidiary" means any Subsidiary of the Parent
(other than the Company) or the Company other than an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired by the Parent, the Company or a
Restricted Subsidiary whereby the Parent, the Company or a Restricted Subsidiary
transfers such property to a Person and the Parent, the Company or a Restricted
Subsidiary leases it from such Person, other than leases between the Company and
a Wholly Owned Restricted Subsidiary or between Wholly Owned Restricted
Subsidiaries.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the Security Agreement dated
____________, 2004, among the Company, the Grantors (as defined therein) and the
Collateral Agent.
"Security Documents" means the Security Agreement, the Pledge
Agreement, the Mortgages and any other document or instrument pursuant to which
a Lien is granted by the Company or any Guarantor to secure any Obligations or
under which rights or remedies with respect to such Lien are governed, as such
agreements may be amended, modified or supplemented from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of the
XxXxxx-Xxxx Companies.
"Stated Maturity" means, (i) with respect to any debt
security, the date specified in such debt security as the fixed date on which
the final installment of principal of such debt security is due and payable and
(ii) with respect to any scheduled installment of principal of, premium, if any,
or interest on any debt security, the date specified in such debt security as
the fixed date on which such installment is due and payable.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
voting power of the outstanding Voting Stock is owned, directly or indirectly,
by such Person and one or more other Subsidiaries of such Person.
"Temporary Cash Investment" means any of the following:
(i) direct obligations of the United States of America or
any agency thereof or obligations fully and unconditionally guaranteed by the
United States of America or any agency thereof, in each case maturing within one
year after the date of acquisition;
(ii) demand deposit accounts, time deposit accounts,
certificates of deposit and money market deposits maturing within 180 days of
the date of acquisition thereof issued by
-17-
a bank or trust company which is organized under the laws of the United States
of America, any state thereof or any foreign country recognized by the United
States, and which bank or trust company has capital, surplus and undivided
profits aggregating in excess of $50 million (or the foreign currency equivalent
thereof) and has outstanding debt which is rated "A" (or such similar equivalent
rating) or higher by at least one nationally recognized statistical rating
organization (as defined in Rule 436 under the Securities Act) or any
moneymarket fund sponsored by a registered broker dealer or mutual fund
distribution;
(iii) repurchase obligations with a term of not more than
30 days for underlying securities of the types described in clause (i) above
entered into with a bank meeting the qualifications described in clause (ii)
above;
(iv) commercial paper, maturing not more than 270 days
after the date of acquisition, issued by a corporation (other than an Affiliate
of the Company) organized and in existence under the laws of the United States
of America, any state thereof or any foreign country recognized by the United
States of America with a rating at the time as of which any investment therein
is made of "P-1" (or higher) according to Xxxxx'x or "A-1" (or higher) according
to S&P; and
(v) securities with maturities of six months or less from
the date of acquisition issued or fully and unconditionally guaranteed by any
state, commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least "A" by S&P
or Xxxxx'x.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA.
"Trade Payables" means, with respect to any Person, any
accounts payable or any other indebtedness or monetary obligation to trade
creditors created, assumed or guaranteed by such Person or any of its
Subsidiaries arising in the ordinary course of business in connection with the
acquisition of goods or services.
"Transaction Date" means, with respect to the Incurrence of
any Indebtedness by the Parent, the Company or any of the Restricted
Subsidiaries, the date such Indebtedness is to be Incurred and, with respect to
any Restricted Payment, the date such Restricted Payment is to be made.
"Trustee" means the party named as such in the preamble of
this Indenture until a successor replaces it in accordance with the applicable
provisions of this Indenture and, thereafter, means the successor.
"Trust Officer" means any vice president, assistant vice
president or trust officer of the Trustee assigned by the Trustee to administer
its corporate trust matters.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Parent or the Company that at the time of determination shall be designated an
Unrestricted Subsidiary by the Board of Directors of the Parent or the Company,
as applicable, in the manner provided below and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors of the Parent or the Company
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may designate any Restricted Subsidiary (including any newly acquired or newly
formed Subsidiary of the Parent or the Company) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, the Parent, the Company or any Restricted Subsidiary; provided
that (a) any guarantee by the Parent, the Company or any Restricted Subsidiary
of any Indebtedness of the Subsidiary being so designated shall be deemed an
"Incurrence" of such Indebtedness and an "Investment" by the Parent, the Company
or such Restricted Subsidiary (or both, if applicable) at the time of such
designation; (b) either (1) the Subsidiary to be so designated has total assets
of $1,000 or less or (2) if such Subsidiary has assets greater than $1,000, such
designation would be permitted under Section 4.04 and (c) if applicable, the
Incurrence of Indebtedness and the Investment referred to in clause (a) of this
proviso would be permitted under Sections 4.03 and 4.04. The Board of Directors
of the Parent or the Company may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary, provided that immediately after giving effect to such
designation (x) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately after such designation would, if Incurred at such time,
have been permitted to be Incurred (and shall be deemed to have been Incurred)
for all purposes of this Indenture and (y) no Default or Event of Default shall
have occurred and be continuing. Any such designation by the Board of Directors
of the Parent or the Company shall be evidenced to the Trustee by promptly
filing with the Trustee a copy of the Board Resolution giving effect to such
designation and an Officer's Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which full faith and credit of the United States of America is
pledged and which are not callable at the Parent's or the Company's option.
"Voting Stock" means with respect to any Person, Capital Stock
of any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Wholly Owned" means, with respect to any Subsidiary of any
Person, the ownership of all of the outstanding Capital Stock of such Subsidiary
(other than any director's qualifying shares or Investments by foreign nationals
mandated by applicable law) by such Person or one or more Wholly Owned
Subsidiaries of such Person.
1.02. Other Definitions. The following terms have the
definitions set forth in the Sections listed below.
Defined in
Term Section
"Affiliate Transaction"............................. 4.07(a)
"Asset Sale Offer" ................................. 4.06(b)
"Authentication Order" ............................. 2.02
"Change of Control Offer"........................... 4.08(b)
"covenant defeasance option"........................ 8.01(b)
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Defined in
Term Section
"DTC"............................................... 2.03
"Event of Default".................................. 6.01
"Excess Proceeds"................................... 4.06(b)
"Guaranteed Indebtedness" .......................... 4.10
"Guaranteed Obligations"............................ 11.01
"incorporated provision"............................ 12.01
"legal defeasance option"........................... 8.01(b)
"Legal Holiday"..................................... 12.07
"MD&A".............................................. 4.02
"Notice of Default"................................. 6.01
"Paying Agent"...................................... 2.03
"Permitted Debt".................................... 4.03(b)
"Registrar"......................................... 2.03
"Restricted Payments"............................... 4.04(a)
1.03. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes and the Guarantees.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company, the
Guarantors and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by Commission rule have the
meanings assigned to them by such definitions.
1.04. Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
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(d) "including" means including without limitation;
(e) words in the singular include the plural and words in
the plural include the singular;
(f) the principal amount of any noninterest bearing or
other discount security at any date shall be the principal amount thereof that
would be shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP;
(g) the principal amount of any Preferred Stock shall be
(i) the maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater;
(h) "will" shall be interpreted to express a command;
(i) references to sections of or rules under the
Securities Act will be deemed to include substitute, replacement of successor
sections or rules adopted by the Commission from time to time; and
(j) references to Sections and Articles are to Sections
and Articles of this Indenture unless otherwise specified.
ARTICLE II
THE NOTES
2.01. Form and Dating.
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each Note shall be dated the date of its authentication. The Notes
shall be issued only in registered form without coupons. Original Notes shall be
issued only in minimum denominations of $100 and larger integral multiples of
$100. Any Note issued thereafter (including on any exchange or transfer or any
issuance of PIK Notes in accordance with Section 2.12) shall be issued only in
minimum denominations of $100 and larger integral multiples of $100.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
(b) Global Note. The Note issued in global form shall be
substantially in the form of Exhibit A hereto (including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be issued substantially in the
form of Exhibit A hereto (but without the Global Note Legend thereon and without
the "Schedule of Exchanges of Interests in the Global Note" attached
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thereto). The Global Note shall represent such of the outstanding Notes as shall
be specified therein and shall provide that it represents the aggregate
principal amount at maturity of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount at maturity of outstanding Notes
represented thereby may be increased through the issuance of PIK Notes as
provided herein and may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of the Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount at maturity of outstanding Notes represented thereby shall be
made by the Trustee or the Custodian in accordance with the terms hereof and of
the Global Note as to increases due to the issuance of PIK Notes and otherwise
in accordance with instructions given by the Holder thereof as required by
Section 2.06.
2.02. Execution and Authentication. One Officer shall sign
the Notes for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. Such signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed
by one Officer of the Company (an "Authentication Order"), authenticate the
Notes for original issue of up to $350,000,000 aggregate principal amount at
maturity, and may thereafter authenticate PIK Notes issuable pursuant to the
terms hereof. The aggregate principal amount at maturity of Notes outstanding at
any time may not exceed such amount except as provided in Section 2.07.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
2.03. Registrar and Paying Agent. The Company shall
maintain in the Borough of Manhattan, the City of New York, an office or agency
where Notes may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Notes may be presented for payment
("Paying Agent"). The Registrar shall keep a register of the Notes and of their
transfer and exchange. The Company may appoint one or more co-registrars and one
or more additional paying agents. The term "Registrar" includes any co-registrar
and the term "Paying Agent" includes any additional paying agent. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company shall notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such to
the extent that it determines that it may do so. The Parent, the Company or any
domestically incorporated Wholly Owned Restricted Subsidiary may act as Paying
Agent or Registrar.
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The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Note.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Notes.
2.04. Paying Agent to Hold Money in Trust. The Company
shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust for the benefit of Holders or the Trustee
all money held by the Paying Agent for the payment of principal, premium, if
any, or interest on the Notes, and will notify the Trustee in writing of any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent
(if other than the Parent, the Company, or one of the Restricted Subsidiaries)
shall have no further liability for the money. If the Parent, the Company or one
of the Restricted Subsidiaries acts as Paying Agent, it shall segregate and hold
in a separate trust fund for the benefit of the Holders all money held by it as
Paying Agent with respect to the Notes. Upon any bankruptcy or reorganization
proceedings relating to the Parent, the Company or any Restricted Subsidiary,
the Trustee shall serve as Paying Agent for the Notes.
2.05. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of all Holders and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven Business Days before each interest payment date
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of the Holders of the Notes and the Company shall otherwise comply
with TIA Section 312(a).
2.06. Transfer and Exchange.
(a) Transfer and Exchange of the Global Note. The Global
Note may not be transferred as a whole except by the Depositary to a nominee of
the Depositary, by a nominee of the Depositary to the Depositary, or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. The Global Note
will be exchanged by the Company for Definitive Notes only if (i) the Company
delivers to the Trustee written notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary; or (ii) the Company in its sole discretion
determines that the Global Note (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the
Trustee; or (iii) there has occurred and is continuing a Default or Event of
Default with respect to the Notes. Upon the occurrence of any of the preceding
events in clause (i), (ii) or (iii) above, Definitive Notes shall be issued in
such names as the Depositary shall instruct the Trustee. Every Note
authenticated and delivered in exchange for, or in lieu of, the Global Note or
any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10, that
is not a Definitive Note shall be authenticated and delivered in the form of,
and shall be, the Global Note. The Global Note may not be exchanged
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for another Note other than as provided in this Section 2.06(a); however,
beneficial interests in the Global Note may be transferred and exchanged as
provided in Section 2.06(b) or (c).
(b) Transfer and Exchange of Beneficial Interests in the
Global Note. The transfer and exchange of beneficial interests in the Global
Note shall be effected through the Depositary, in accordance with the provisions
of this Indenture and the Applicable Procedures. Beneficial interests in the
Global Note shall be subject to restrictions on transfer comparable to those set
forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Note also shall require compliance with
either clause (i) or (ii) below, as applicable, as well as one or more of the
other following clauses, as applicable:
(i) Transfer of Beneficial Interests in the
Global Note. Beneficial interests in the Global Note may be
transferred to Persons who take delivery thereof in the form
of a beneficial interest in the Global Note. No written orders
or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section
2.06(b)(i).
(ii) All Other Transfers and Exchanges of
Beneficial Interests in the Global Note. In connection with
all transfers and exchanges of beneficial interests that are
not subject to Section 2.06(b)(i), the transferor of such
beneficial interest must deliver to the Registrar either (A)
both (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in the Global Note
in an amount equal to the beneficial interest to be
transferred or exchanged; and (2) instructions given in
accordance with the Applicable Procedures containing
information regarding the Participant account to be credited
with such increase; or (B) both (1) a written order from a
Participant or an Indirect Participant given to the Depositary
in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an
amount equal to the beneficial interest to be transferred or
exchanged; and (2) instructions given by the Depositary to the
Registrar containing information regarding the Person in whose
name such Definitive Note shall be registered to effect the
transfer or exchange referred to in clause (1) above. Upon
satisfaction of all of the requirements for transfer or
exchange of beneficial interests in the Global Note contained
in this Indenture and the Notes or otherwise applicable under
the Securities Act, the Trustee shall adjust the principal
amount at maturity of the Global Note pursuant to Section
2.06(g).
(c) Transfer or Exchange of Beneficial Interests for
Definitive Notes. If any holder of a beneficial interest in the Global Note
proposes to exchange such beneficial interest for a Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the
form of a Definitive Note, then, upon satisfaction of the conditions set forth
in Section 2.06(b)(ii), the Trustee shall cause the aggregate principal amount
at maturity of the Global Note to be reduced accordingly pursuant to Section
2.06(g), and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount at maturity. Any Definitive Note issued in
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exchange for a beneficial interest pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered.
(d) Transfer and Exchange of Definitive Notes for
Beneficial Interests. A Holder of a Definitive Note may exchange such Note for a
beneficial interest in the Global Note or transfer such Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial interest in the
Global Note at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Definitive Note and increase
or cause to be increased the aggregate principal amount at maturity of the
Global Note, pursuant to Section 2.06(g).
(e) Transfer and Exchange of Definitive Notes for
Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.06(e), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by
a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by its attorney, duly authorized in writing. A Holder
of Definitive Notes may transfer such Notes to a Person who takes delivery
thereof in the form of a Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Definitive Notes pursuant to
the instructions from the Holder thereof.
(f) Global Note Legend. The Global Note shall bear a
legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN DEFINITIVE FORM, THIS NOTE MAY
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NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(g) Cancellation or Adjustment of the Global Note. At
such time as all beneficial interests in the Global Note have been exchanged for
Definitive Notes or the Global Note has been redeemed, repurchased or canceled
in whole and not in part, the Global Note shall be returned to or retained and
canceled by the Trustee in accordance with Section 2.11. At any time prior to
such cancellation, if any beneficial interest in the Global Note is exchanged
for or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in the Global Note or for Definitive Notes, the principal
amount at maturity of Notes represented by the Global Note shall be reduced
accordingly, in the case of an exchange for Definitive Notes, and an endorsement
shall be made on the Global Note by the Trustee or by the Depositary in
accordance with applicable procedures to reflect such exchange or reduction; and
if the beneficial interest is being exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in the Global
Note, the Global Note shall be increased accordingly and an endorsement shall be
made on the Global Note by the Trustee or by the Depositary in accordance with
applicable procedures to reflect such increase.
(h) General Provisions Relating to Transfers and
Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate the Global Note and Definitive Notes upon receipt
of an Authentication Order in accordance with Section 2.02 or
at the Registrar's request.
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(ii) No service charge shall be made to a holder
of a beneficial interest in the Global Note or to a Holder of
a Definitive Note for any registration of transfer or
exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.06 and
9.05).
(iii) The Registrar shall not be required to
register the transfer of or exchange any Note selected for
redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part.
(iv) The Global Note and all Definitive Notes
issued upon any registration of transfer or exchange of the
Global Note or Definitive Notes shall be the valid obligations
of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Global Note or
Definitive Notes surrendered upon such registration of
transfer or exchange.
(v) The Company shall not be required (A) to
issue, to register the transfer of or to exchange any Notes
during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under
Section 3.02 and ending at the close of business on the day of
selection, (B) to register the transfer of or to exchange any
Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part or
(C) to register the transfer of or to exchange a Note between
a record date and the next succeeding interest payment date.
(vi) Prior to due presentment for the
registration of a transfer of any Note, the Trustee, any Agent
and the Company may deem and treat the Person in whose name
any Note is registered as the absolute owner of such Note for
the purpose of receiving payment of principal of, premium, if
any, and interest on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Company shall be
affected by notice to the contrary.
(vii) The Trustee shall authenticate the Global
Note and Definitive Notes in accordance with the provisions of
Section 2.02.
(viii) All certifications, certificates and
Opinions of Counsel required to be submitted to the Registrar
pursuant to this Section 2.06 to effect a registration of
transfer or exchange may be submitted by facsimile.
(ix) Each Holder of a Note agrees to indemnify
the Company and the Trustee to their reasonable satisfaction
against any liability that may result from the transfer,
exchange or assignment of such Holder's Note in violation of
any provision of this Indenture or applicable United States
Federal or state securities law.
(x) The Trustee shall have no obligation or duty
to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this
-27-
Indenture or under applicable law with respect to any transfer of any
interest in any Note (including any transfers between or among
Depositary participants or beneficial owners of interest in the Global
Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if
and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with
the express requirements hereof.
2.07. Replacement Notes. If any mutilated Note is surrendered to the
Trustee or the Company and the Trustee receives evidence to its reasonable
satisfaction of the destruction, loss or theft of any Note, the Company shall
issue and the Trustee, upon receipt of an Authentication Order, shall
authenticate a replacement Note if the Trustee's requirements are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the reasonable judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent and any authenticating
agent from any loss that any of them may suffer if a Note is replaced. The
Company may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
2.08. Outstanding Notes. The Notes outstanding at any time are all the
Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation, those reductions in the interest in the Global
Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. Except as set forth in
Section 2.09, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount at maturity of any Note is considered paid
under Section 4.01, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Parent, the Company, a Subsidiary
or an Affiliate of any of the foregoing) holds, by no later than 12:00 noon
Eastern Time on a redemption date or maturity date, money sufficient to pay
Notes payable on that date, and the Paying Agent is not prohibited from paying
such money to the Holders on that date pursuant to the terms of this Indenture,
then on and after that date such Notes shall be deemed to be no longer
outstanding and shall cease to accrue interest.
2.09. Treasury Notes. In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Company or any Guarantor, or by any Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company or any Guarantor, shall be
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considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded.
2.10. Temporary Notes. Until certificates representing Notes
are ready for delivery, the Company may prepare and the Trustee, upon receipt of
an Authentication Order, shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of certificated Notes but may have variations
that the Company considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate Definitive Notes in exchange
for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
2.11. Cancellation. The Company at any time may deliver Notes
to the Trustee for cancellation. The Registrar and Paying Agent shall forward to
the Trustee any Notes surrendered to them for registration of transfer, exchange
or payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall dispose of canceled Notes in accordance with its procedures for the
disposition of canceled securities in effect as of the date of such disposition
(subject to the record retention requirement of the Exchange Act). Certification
of the disposition of all canceled Notes shall be delivered to the Company. The
Company may not issue new Notes to replace Notes that have redeemed or paid or
that have been delivered to the Trustee for cancellation.
2.12. Payment of Interest; Defaulted Interest.
(a) Each of the Notes shall bear interest at 13% per
annum from ______________, 2004 or from the most recent date to which interest
has been paid or duly provided for in accordance with Section 4.01 or, if no
interest has been paid or duly provided for, from the date of original issuance,
until the principal amount thereof is paid.
(b) Interest shall be payable in cash, provided that on
each of the first four regularly scheduled interest payment dates set forth in
the Notes occurring after the Closing Date, the Company may, at its option, pay
up to 12% interest by issuing PIK Notes in a principal amount equal to the
amount of interest not paid in cash on such regularly scheduled interest payment
date. PIK Notes will be issued in denominations of $100 principal amount and
integral multiples thereof. The amount of PIK Notes issued will be rounded down
to the nearest $100, with any fractional amount paid in cash.
(c) If the Company defaults in a payment of interest on
the Notes when due, the Company shall pay the defaulted interest in any lawful
manner plus, to the extent lawful, interest payable on the defaulted interest,
to the Persons who are Holders on a subsequent special record date or, in the
case of the payment of non-cash defaulted interest, to the Persons who are
Holders on the date of such payment, in each case at the rate provided in the
Notes. The Company shall notify the Trustee in writing of the amount of
defaulted interest proposed to be
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paid on each Note and the date of the proposed payment. The Company shall fix or
cause to be fixed each such special record date and payment date; provided, that
no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such cash interest to be paid.
ARTICLE III
REDEMPTION
3.01. Notices to Trustee. If the Company elects to redeem
Notes pursuant to Section 3.07, it shall notify the Trustee in writing of the
redemption date and the principal amount of Notes to be redeemed.
The Company shall give each notice to the Trustee provided for
in this Section 3.01 at least 30 days but not more than 60 days before the
redemption date unless the Trustee consents to a shorter period. Such notice
shall be accompanied by an Officer's Certificate from the Company to the effect
that such redemption will comply with the conditions herein. Any such notice may
be canceled at any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.
3.02. Selection of Notes To Be Redeemed. If fewer than all the
Notes are to be redeemed, the Trustee shall select the Notes to be redeemed pro
rata or by lot or by a method that the Trustee in its sole discretion shall deem
to be fair and appropriate. The Trustee shall make the selection from
outstanding Notes not previously called for redemption. The Trustee may select
for redemption portions of the principal of Notes that have denominations larger
than $1,000. Notes and portions of them the Trustee selects shall be in amounts
of $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply
to Notes called for redemption also apply to portions of Notes called for
redemption. The Trustee shall notify the Company promptly of the Notes or
portions of Notes to be redeemed.
3.03. Notice of Redemption. (a) At least 30 days but not more
than 60 days before a date for redemption of Notes, the Company shall mail a
notice of redemption by first-class mail to each Holder of Notes to be redeemed
at such Holder's registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(i) the redemption date;
(ii) the redemption price and the amount of
accrued interest to the redemption date;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;
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(v) if fewer than all the outstanding Notes are
to be redeemed, the certificate numbers and principal amounts
of the particular Notes to be redeemed;
(vi) that, unless the Company defaults in making
such redemption payment or the Paying Agent is prohibited from
making such payment pursuant to the terms of this Indenture,
interest on Notes (or portion thereof) called for redemption
ceases to accrue on and after the redemption date;
(vii) the CUSIP number, if any, printed on the
Notes being redeemed; and
(viii) that no representation is made as to the
correctness or accuracy of the CUSIP number, if any, listed in
such notice or printed on the Notes.
(b) At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at the Company's expense. In such
event, the Company shall provide the Trustee with the information required by
this Section 3.03 at least two (2) Business Days prior to the date the Trustee
is to give the notice of redemption.
3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed in accordance with Section 3.03, Notes called for
redemption become due and payable on the redemption date and at the redemption
price stated in the notice. Upon surrender to the Paying Agent, such Notes shall
be paid at the redemption price stated in the notice, plus accrued interest to
the redemption date; provided, however, that if the redemption date is after a
regular record date and on or prior to the related interest payment date, the
accrued interest shall be payable to the Holder of the redeemed Notes registered
on the relevant record date. Failure to give notice or any defect in the notice
to any Holder shall not affect the validity of the notice to any other Holder. A
notice of redemption may not be conditional.
3.05. Deposit of Redemption Price. Prior to 12:00 noon (New
York time) on the redemption date, the Company shall deposit with the Paying
Agent (or, if the Parent, the Company or a Restricted Subsidiary is the Paying
Agent, shall segregate and hold in trust) money sufficient to pay the redemption
price of and accrued interest on all Notes to be redeemed on that date other
than Notes or portions of Notes called for redemption that have been delivered
by the Company to the Trustee for cancellation. On and after the redemption
date, interest will cease to accrue on Notes or portions thereof called for
redemption in accordance with Section 2.08. The Paying Agent shall promptly
return to the Company upon its written request any money deposited with the
Paying Agent by the Company that is in excess of the amounts necessary to pay
the redemption price of and accrued interest on all Notes to be redeemed.
If a Note is redeemed on or after an interest record date but
on or prior to the related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Note was registered at
the close of business on such record date. If any Note called for redemption is
not so paid upon surrender for redemption or purchase because of the failure of
the Company to comply with the preceding paragraph, interest shall be paid on
the unpaid principal, from the redemption until such principal is paid, and to
the extent lawful on any
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interest not paid on such unpaid principal, in each case at the rate provided in
the Notes and in Section 4.01.
3.06. Notes Redeemed in Part. Upon surrender of a Note that is
redeemed in part, the Company shall issue, and upon receipt of an Authentication
Order, the Trustee shall authenticate for the Holder (at the Company's expense)
a new Note equal in principal amount to the unredeemed portion of the Note
surrendered.
3.07. Optional Redemption. The Notes shall be redeemable at
the option of the Company, in whole or in part, on one or more occasions, in
accordance with this Article III at the following redemption prices (expressed
as percentages of principal amount at maturity), plus accrued and unpaid
interest to the redemption date (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date), if redeemed during the 12-month period commencing on _________ of
the years set forth below:
YEAR REDEMPTION PRICE
---- ----------------
2004 106.50%
2005 104.88%
2006 103.25%
2007 101.63%
2008 and thereafter 100.00%
ARTICLE IV
COVENANTS
4.01. Payment of Notes. The Company shall pay the principal
of, premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes and in this Indenture. Principal, premium, if any, and
interest shall be considered paid on the date due if as of 12:00 noon Eastern
Time on such date the Trustee or the Paying Agent (if other than the Parent, the
Company or one of their Subsidiaries or Affiliates) holds in accordance with
this Indenture money (and, in the case of interest, PIK Notes to the extent
permitted hereunder) sufficient to pay all principal, premium and interest then
due and the Trustee or the Paying Agent, as the case may be, is not prohibited
from paying such money (and, in the case of interest, PIK Notes to the extent
permitted hereunder) to the Holders on that date pursuant to the terms of this
Indenture.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful. Notwithstanding
anything to the contrary contained in this Indenture, the Company may, to the
extent it is required to do so by law, deduct or withhold income or other
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similar taxes imposed by the United States of America from principal, premium or
interest payments hereunder.
4.02. Reports to Holders.
So long as any Notes are outstanding, the Parent will furnish
to the Trustee and to Holders unaudited quarterly consolidated financial
statements prepared in accordance with GAAP, consistently applied, together with
management's discussion and analysis of financial condition and results of
operations providing the information described in Item 303(a) of Regulation S-K
under the Securities Act, and any successor rules ("MD&A"), not later than 45
days after the end of each of the first three fiscal quarters of each fiscal
year; and (2) audited annual consolidated financial statements prepared in
accordance with GAAP, consistently applied, together with a report on the
financial statements from the Parent's independent accountants and MD&A, not
later than 90 days after the end of each fiscal year. In addition, the Parent
agrees that, for so long as any Notes remain outstanding, it will furnish to the
Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
4.03. Limitation on Indebtedness and Issuance of Disqualified
Stock. (a) The Parent, will not, and will not permit any of its Restricted
Subsidiaries to, and the Company will not and will not permit any of its
Restricted Subsidiaries to, Incur any Indebtedness, and the Parent will not
issue any Disqualified Stock, the Company will not issue any Disqualified Stock,
and neither the Parent nor the Company will permit any Restricted Subsidiary to
issue any Disqualified Stock; provided that the Parent, the Company or any
Restricted Subsidiary may Incur Indebtedness or issue Disqualified Stock if,
after giving effect to the Incurrence of such Indebtedness or the issuance of
such Disqualified Stock and the receipt and application of the proceeds
therefrom, the Debt to Consolidated EBITDA Ratio would have been no greater than
3.5 to 1 and the Debt to Consolidated EBITDA less Capital Expenditures Ratio
would have been no greater than 7.0 to 1.
(b) Notwithstanding the foregoing, the Parent, the
Company and any Restricted Subsidiary (except as specified below) may Incur each
and all of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) Indebtedness owed (a) by the Parent to the
Company, (b) by the Company to the Parent, (c) by a Restricted
Subsidiary to the Parent or the Company, or (d) by the Parent
or the Company or a Restricted Subsidiary to any Restricted
Subsidiary; provided that (1) such Indebtedness shall be
evidenced by a promissory note expressly subordinated to the
Notes and any Guarantees, and (2) any event which results in
any Restricted Subsidiary to which such Indebtedness is owed
ceasing to be a Restricted Subsidiary or any subsequent
transfer of such Indebtedness (other than to the Parent, the
Company or another Restricted Subsidiary) shall be deemed, in
each case, to constitute an Incurrence of such Indebtedness
not permitted by this Section 4.03(b)(i);
(ii) Indebtedness of the Parent, the Company or a
Restricted Subsidiary issued in exchange for, or the net
proceeds of which are used to
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Refinance, then outstanding Indebtedness of the Parent, the
Company or a Restricted Subsidiary (other than Indebtedness
Incurred under Sections 4.03(b)(i), (iii), (iv), (v) or (vi))
and any Refinancings thereof in an amount not to exceed the
amount so Refinanced (plus premiums, accrued interest, fees
and expenses); provided that Indebtedness the proceeds of
which are used to Refinance the Notes or Indebtedness that is
pari passu with, or subordinated in right of payment to, the
Notes or the Guarantees shall only be permitted under this
Section 4.03(b)(ii) if (A) in case the Notes are Refinanced in
part or the Indebtedness to be Refinanced is pari passu with
the Notes or any Guarantees, such new Indebtedness, by its
terms or by the terms of any agreement or instrument pursuant
to which such new Indebtedness is outstanding, is expressly
made pari passu with, or subordinate in right of payment to,
the remaining Notes or such Guarantees, (B) in case the
Indebtedness to be Refinanced is subordinated in right of
payment to the Notes and the Guarantees, such new
Indebtedness, by its terms or by the terms of any agreement or
instrument pursuant to which such new Indebtedness is issued
or remains outstanding, is expressly made subordinate in right
of payment to the Notes and the Guarantees at least to the
extent that the Indebtedness to be Refinanced is subordinated
to the Notes and the Guarantees and (C) such new Indebtedness,
determined as of the date of Incurrence of such new
Indebtedness, does not mature prior to the Stated Maturity of
the Indebtedness to be Refinanced, and the Average Life of
such new Indebtedness is at least equal to the remaining
Average Life of the Indebtedness to be Refinanced;
(iii) Indebtedness (A) in respect of performance,
surety or appeal bonds provided in the ordinary course of
business, (B) under Currency Agreements and Interest Rate
Agreements; provided that such agreements (1) are designed
solely to protect the Parent, the Company or the Restricted
Subsidiaries against fluctuations in foreign currency exchange
rates or interest rates and (2) do not increase the
Indebtedness of the obligor outstanding at any time other than
as a result of fluctuations in foreign currency exchange rates
or interest rates or by reason of fees, indemnities and
compensation payable thereunder; or (C) arising from
agreements providing for indemnification, adjustment of
purchase price or similar obligations, or from guarantees or
letters of credit, surety bonds or performance bonds securing
any of the obligations of the Parent, the Company or those of
any of the Restricted Subsidiaries pursuant to such
agreements, in any case Incurred in connection with the
disposition of any business, assets or Restricted Subsidiary
of the Parent or the Company (other than guarantees of
Indebtedness Incurred by any Person acquiring all or any
portion of such business, assets or Restricted Subsidiary of
the Parent or the Company for the purpose of financing such
acquisition), in a principal amount not to exceed the gross
proceeds actually received by the Parent, the Company or any
Restricted Subsidiary in connection with such disposition;
(iv) Guarantees of the Notes and guarantees of
Indebtedness of the Parent or the Company by any Restricted
Subsidiary provided the guarantee of such Indebtedness is
permitted by and made in accordance with Section 4.10;
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(v) Indebtedness (including guarantees of such
indebtedness) Incurred to finance the cost (including the cost
of design, development, site acquisition, construction,
installation, integration or improvement) of equipment,
inventory or telecommunications network assets acquired
(including by way of Capital Lease and acquisitions of Capital
Stock of a Person that becomes a Restricted Subsidiary to the
extent of the fair market value of the equipment, inventory or
network assets so acquired) by the Parent, the Company or any
Restricted Subsidiary after the Closing Date, provided that
(A) such Indebtedness is incurred prior to or within six
months after such acquisition or the completion of such
construction or improvement and (B) any such Indebtedness
incurred in connection with any particular acquisition,
construction or improvement shall not exceed the cost of such
acquisition, construction or improvement, and provided further
that the aggregate principal amount of such Indebtedness shall
not exceed $50.0 million at any time outstanding;
(vi) Indebtedness Incurred by the Parent or the
Company not otherwise permitted to be Incurred pursuant to
Sections 4.03(b)(i) through (v) above, which together with all
other Indebtedness Incurred pursuant to this Section
4.03(b)(vi), has an aggregate principal amount not in excess
of $10.0 million at any time outstanding;
(vii) the Notes issued on the Closing Date;
(viii) Indebtedness of the Parent, the Company or
any of the Restricted Subsidiaries existing on the Closing
Date;
(ix) any PIK Notes issued under this Indenture;
and
(x) Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary of the
Parent, the Company or any of the Restricted Subsidiaries to
the extent that, on the date of such acquisition and after
giving pro forma effect thereto, the Company could have
Incurred such Indebtedness in accordance with paragraph (a) of
this Section 4.03 on the date such Person becomes a Restricted
Subsidiary.
(c) Neither the Parent nor the Company will Incur any
Indebtedness (including Permitted Debt) that is contractually subordinated in
right of payment to any other Indebtedness of the Parent or the Company, as
applicable, unless such Indebtedness is also contractually subordinated in right
of payment to the Notes and the Guarantees on substantially identical terms,
provided, however, that no Indebtedness of the Parent or the Company will be
deemed to be contractually subordinated in right of payment to any other
Indebtedness of the Parent or the Company solely by virtue of being unsecured.
(d) For purposes of determining compliance with this
Section 4.03, in the event that an item of Indebtedness meets the criteria of
more than one of the types of Indebtedness described in the above clauses
comprising Permitted Debt, the Company, in its sole
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discretion, will classify and from time to time may reclassify such item of
Indebtedness and will only be required to include the amount and type of such
Indebtedness in one of such clauses.
4.04. Limitation on Restricted Payments. (a) The Parent will
not and will not permit any Restricted Subsidiary to, and the Company will not
and will not permit any Restricted Subsidiary to, directly or indirectly:
(1) declare or pay any dividend or make any distribution
on or with respect to the Parent's, the Company's or such Restricted
Subsidiaries' Capital Stock (other than (a) dividends or distributions
payable solely in shares of the Parent's Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to acquire
shares of such Capital Stock and (b) pro rata dividends or
distributions on Common Stock of any Restricted Subsidiary held by
minority interest holders) held by Persons other than the Parent, the
Company or any of the Restricted Subsidiaries; or
(2) purchase, call for redemption or redeem, retire or
otherwise acquire for value any shares of Capital Stock of the Parent,
the Company or any Subsidiary (including options, warrants or other
rights to acquire such shares of Capital Stock) held by any Person
other than the Parent, the Company or any of the Restricted
Subsidiaries; or
(3) make any voluntary or optional principal payment, or
voluntary or optional redemption, repurchase, defeasance, or other
acquisition or retirement for value, of Indebtedness of the Company or
that of any Guarantor that is subordinated in right of payment to the
Notes or any Guarantee; or
(4) make any Investment, other than a Permitted
Investment, in any Person (such payments or any other actions described
in clauses (i) through (iv) above being collectively "Restricted
Payments") if, at the time of, and after giving effect to, the proposed
Restricted Payment:
(A) a Default or Event of Default shall have
occurred and be continuing, or would result from such
Restricted Payment;
(B) after giving pro forma effect to such
Restricted Payment as if such Restricted Payment had been made
at the beginning of the applicable four-fiscal quarter period,
the Company could not Incur at least $1.00 of Indebtedness
under Section 4.03(a); or
(C) the aggregate amount of all Restricted
Payments (the amount, if other than in cash, to be determined
in good faith by the Board of Directors of the Parent, whose
determination shall be conclusive and evidenced by a Board
Resolution) made after the Closing Date shall exceed the sum
of:
(i) 50% of the aggregate amount of the
Adjusted Consolidated Net Income (or, if the Adjusted
Consolidated Net Income is a loss, minus 100% of the
amount of such loss) (determined by excluding income
resulting from transfers of assets by the Parent, the
Company or a
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Restricted Subsidiary to an Unrestricted Subsidiary)
accrued on a cumulative basis during the period
(taken as one accounting period) beginning on the
first day of the fiscal quarter immediately following
the Closing Date and ending on the last day of the
last fiscal quarter preceding the Transaction Date
for which financial statements have been delivered to
the Trustee and the Holders pursuant to Section 4.02;
plus;
(ii) the aggregate Qualified Proceeds
received by the Parent and the aggregate Net Cash
Proceeds received by the Parent from the issuance to
a Person who is not a Subsidiary of the Parent or the
Company of any options, warrants or other rights to
acquire the Capital Stock of the Parent (in each
case, exclusive of any Disqualified Stock or any
options, warrants or other rights that are redeemable
at the option of the Holder, or are required to be
redeemed, prior to the Stated Maturity of the Notes);
plus;
(iii) an amount equal to the net
reduction in Investments (other than reductions in
Permitted Investments) in any Person resulting from
payments of dividends, repayments of loans or
advances, or other transfers of assets, in each case
to the Parent, the Company or any Restricted
Subsidiary or from the Net Cash Proceeds from the
sale of any such Investment (except, in each case, to
the extent any such payment or proceeds are included
in the calculation of Adjusted Consolidated Net
Income), or from redesignations of Unrestricted
Subsidiaries as Restricted Subsidiaries (valued in
each case as provided in the definition of
"Investments"), not to exceed, in each case, the
amount of Investments previously made by the Parent,
the Company or any Restricted Subsidiary in such
Person or Unrestricted Subsidiary.
(b) The foregoing provision shall not be violated by
reason of:
(i) the payment of any dividend within 60 days
after the date of declaration thereof if, at said date of
declaration, such payment would comply with Section 4.04(a);
(ii) the redemption, repurchase, defeasance or
other acquisition or retirement for value of Indebtedness that
is subordinated in right of payment to the Notes and the
Guarantees including premium, if any, and accrued and unpaid
interest, with the proceeds of, or in exchange for,
Indebtedness Incurred under Section 4.03(b)(ii);
(iii) the purchase, call for redemption,
redemption, retirement, or other acquisition of the Capital
Stock of the Parent, the Company or any Subsidiary (or
options, warrants or other rights to acquire such Capital
Stock) in exchange for, or out of the proceeds of a
substantially concurrent offering of, shares of the Capital
Stock of the Parent (other than Disqualified Stock) other than
to a Subsidiary of the Parent or the Company;
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(iv) the making of any principal payment or the
repurchase, redemption, retirement, defeasance or other
acquisition for value of Indebtedness of the Company or that
of any Guarantor which is subordinated in right of payment to
the Notes or the Guarantees in exchange for, or out of the
proceeds of a substantially concurrent offering of, shares of
the Capital Stock of the Parent (other than Disqualified
Stock) or Indebtedness subordinated in right of payment to the
Notes and the Guarantees;
(v) payments or distributions to dissenting
stockholders that are not Affiliates of the Parent, the
Company or any of their Subsidiaries pursuant to applicable
law pursuant to or in connection with a consolidation, merger
or transfer of assets that complies with the provisions of
Section 5.01;
(vi) the purchase, redemption, acquisition,
cancellation or other retirement for value of shares of the
Capital Stock of the Parent to the extent necessary in the
good faith judgment of the Board of Directors of the Parent,
to prevent the loss or secure the renewal or reinstatement of
any material license or franchise held by the Parent, the
Company or any Restricted Subsidiary from any governmental
agency, provided that the aggregate amount of Restricted
Payments that may be made under this Section 4.04(b)(vi) shall
not exceed $10.0 million;
(vii) the purchase, redemption, retirement or
other acquisition for value of the Capital Stock of the Parent
or options to purchase such shares, held by the Parent's, the
Company's or any Restricted Subsidiary's directors, employees
or former directors or employees (or their donees, trusts for
their benefit or the benefit of their family members, their
estates or beneficiaries under their estates) upon death,
disability, retirement, termination of employment or pursuant
to the terms of any agreement under which such shares of
Capital Stock or options were issued; provided that the
aggregate consideration paid for such purchase, redemption,
acquisition, cancellation or other retirement of such shares
of Capital Stock or options after the Closing Date does not
exceed (A) $2.0 million in any fiscal year or (B) $10.0
million in the aggregate, plus in the case of each of clause
(A) and clause (B), the aggregate of Net Cash Proceeds the
Parent received from the issuance of Capital Stock of the
Parent to such directors, employees or former directors or
employees, provided that the amount of any such Net Cash
Proceeds that are utilized for any such purchase, redemption,
retirement or other acquisition shall be excluded from Section
4.04(a)(4)(C)(ii);
(viii) Investments in any Person that is primarily
engaged in a business that is related, ancillary or
complementary to the business of the Parent, the Company and
the Restricted Subsidiaries on the date of such Investment;
provided that the aggregate amount of such Investments (after
taking into account the amount of all other Investments made
pursuant to this Section 4.04(b)(viii)) does not exceed the
sum of (A) $10.0 million and (B) the amount of Qualified
Proceeds received by the Parent, except to the extent such
Qualified Proceeds are used to make Restricted Payments
pursuant to Section 4.04(a)(4)(C)(ii), or Sections
4.04(b)(iii) or (iv);
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(ix) Investments acquired in exchange for the
Capital Stock of the Parent (other than Disqualified Stock);
(x) repurchases of Capital Stock deemed to occur
upon the exercise of stock options or warrants if such Capital
Stock represents a portion of the exercise price thereof; and
(xi) other Restricted Payments in an aggregate
amount not to exceed $10.0 million;
provided that, except in the case of Sections 4.04(b)(i), (iii), (viii) and
(xi), no Default or Event of Default will have occurred and be continuing or
occur as a consequence of the actions or payments set forth therein.
Each Restricted Payment permitted pursuant to the preceding
clauses, other than the Restricted Payment referred to in Section 4.04(b)(ii),
an exchange of Capital Stock for Capital Stock or Indebtedness referred to in
Section 4.04(b)(iii) or (iv), an Investment referred to in Section 4.04(b)(ix)
or repurchases of Capital Stock referred to in Section 4.04(b)(x), shall be
included in calculating whether the conditions of Section 4.04(a)(4)(C) have
been met with respect to any subsequent Restricted Payments. In the event the
proceeds of an issuance of the Capital Stock of the Parent are used for the
redemption, repurchase or other acquisition of the Notes, or Indebtedness that
is pari passu with the Notes, then the Qualified Proceeds of such issuance shall
be included in Section 4.04(a)(4)(C) only to the extent such proceeds are not
used for such redemption, repurchase or other acquisition of Indebtedness.
4.05. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries. (a) The Parent will not, and will not permit
any Restricted Subsidiary to, and Company will not, and will not permit any
Restricted Subsidiary to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Restricted Subsidiary to (i) pay dividends or make any other
distributions permitted by applicable law on any Capital Stock of such
Restricted Subsidiary owned by the Parent, the Company or any other Restricted
Subsidiary, (ii) pay any Indebtedness owed to the Parent, the Company or any
other Restricted Subsidiary, (iii) make loans or advances to the Parent, the
Company or any other Restricted Subsidiary or (iv) transfer any of its property
or assets to the Parent, the Company or any other Restricted Subsidiary.
(b) The foregoing provisions shall not restrict any
encumbrances or restrictions:
(i) existing on the Closing Date in this
Indenture, the Security Documents or any other agreements in
effect on the Closing Date, and any amendments, extensions,
Refinancings, renewals or replacements of such agreements;
provided that the encumbrances and restrictions in any such
amendments, extensions, Refinancings, renewals or replacements
are no less favorable in any material respect to the Holders
than those encumbrances or restrictions that are then in
effect and that are being extended, Refinanced, renewed or
replaced;
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(ii) existing under or by reason of applicable
law;
(iii) existing with respect to any Person or the
property or assets of such Person acquired by the Parent, the
Company or any Restricted Subsidiary, existing at the time of
such acquisition and not incurred in contemplation thereof,
which encumbrances or restrictions are not applicable to any
Person or the property or assets of any Person other than such
Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of Section
4.05(a), (A) that restrict in a customary manner the
subletting, assignment or transfer of any property or asset
that is a lease, license, conveyance or contract or similar
property or asset, (B) existing by virtue of any transfer of,
agreement to transfer, option or right with respect to, or
Lien on, any property or assets of the Parent, the Company or
any Restricted Subsidiary not otherwise prohibited by this
Indenture or (C) arising or agreed to in the ordinary course
of business, not relating to any Indebtedness, and that do
not, individually or in the aggregate, detract from the value
of property or assets of the Parent, the Company or any
Restricted Subsidiary in any manner material to the Parent,
the Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and
imposed pursuant to an agreement that has been entered into
for the sale or disposition of all or substantially all of the
Capital Stock of, or property and assets of, such Restricted
Subsidiary; or
(vi) contained in the terms of any Indebtedness
of a Restricted Subsidiary, or any agreement pursuant to which
such Indebtedness was issued, if the encumbrance or
restriction applies only in the event of a payment default or
a default with respect to a financial covenant contained in
such Indebtedness or agreement, if the encumbrance or
restriction is not materially more disadvantageous to the
Holders of the Notes than is customary in comparable
financings (as determined by the Board of Directors of the
Parent) and if the Board of Directors of the Parent determines
that any such encumbrance or restriction will not materially
affect the ability of the Company to make principal, premium
or interest payments on the Notes or the Parent's ability to
satisfy its obligations under its Guarantee.
Nothing contained in this Section 4.05 shall prevent the
Parent, the Company or any Restricted Subsidiary from (1) creating, incurring,
assuming or suffering to exist any Liens otherwise permitted by Section 4.14 or
(2) restricting the sale or other disposition of property or assets of the
Parent, the Company or any of the Restricted Subsidiaries that secure
Indebtedness of the Parent, the Company or any of the Restricted Subsidiaries.
4.06. Limitation on Asset Sales. (a) The Parent will not, and
will not permit any Restricted Subsidiary to, and the Company will not, and will
not permit any Restricted Subsidiary to, consummate any Asset Sale, unless (i)
the consideration received by the Parent, the Company or such Restricted
Subsidiary is at least equal to the fair market value of the assets
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sold or disposed of as evidenced by a Board Resolution of the Parent, and (ii)
at least 75% of the consideration received consists of cash or Temporary Cash
Investments, provided that the amount of any liabilities (as shown on the
Parent's most recent balance sheet, the Company's most recent balance sheet or
such Restricted Subsidiary's most recent balance sheet) of the Parent, the
Company or any Restricted Subsidiary (other than contingent liabilities,
liabilities to the Parent, the Company or a Restricted Subsidiary, and
liabilities that are by their terms subordinated to the Notes or any Guarantee)
that are assumed by the transferee of any such assets pursuant to a customary
novation agreement that releases the Parent, the Company or such Restricted
Subsidiary from further liability, shall be deemed to be cash for purposes of
this provision.
(b) Within 180 days after the receipt of any Net Proceeds
from an Asset Sale, the Parent, the Company or any such Restricted Subsidiary
may apply such Net Proceeds to (i) permanently repay the principal of any
secured Indebtedness (to the extent of the fair value of the assets securing
such Indebtedness, as determined by the Board of Directors of the Parent), or
(ii) acquire assets used in the Parent's, the Company's or the Restricted
Subsidiaries' principal business. Any Net Proceeds that are applied to the
acquisition of such assets pursuant to any binding agreement shall be deemed to
have been applied for such purpose within such 180-day period so long as they
are so applied within one year after the date of receipt of such Net Proceeds.
Pending the final application of any such Net Proceeds, the Parent, the Company
or any such Restricted Subsidiary may temporarily invest such Net Proceeds in
any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset
Sales that are not applied as provided in clause (i) or (ii) above will be
deemed to constitute "Excess Proceeds."
(c) Within 30 days following the date on which the
aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall
make an Offer to Purchase (an "Asset Sale Offer") to all holders of the Notes to
purchase the maximum principal amount of Notes that may be purchased out of the
Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 101%
of the principal amount thereof, plus accrued and unpaid interest, to the date
of purchase and payable in cash, in accordance with the procedures set forth in
this Indenture for an Offer to Purchase. To the extent that the aggregate
principal amount of Notes tendered pursuant to an Asset Sale Offer is less than
the amount that the Company is required to repurchase, the Company may use any
remaining Excess Proceeds for purposes not otherwise prohibited by this
Indenture. If the aggregate principal amount of Notes surrendered by holders
thereof exceeds the amount that the Company is required to repurchase, the
trustee shall select the Notes to be purchased on a pro rata basis. Upon
completion of such Offer to Purchase, the amount of Excess Proceeds shall be
reset at zero.
4.07. Limitation on Transactions with Affiliates. (a) The
Parent will not, and will not permit any of its Restricted Subsidiaries to, and
the Company will not, and will not permit any of its Restricted Subsidiaries to,
make any payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate (each of the
foregoing, an "Affiliate Transaction"), unless:
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(i) such Affiliate Transaction is on terms that
are no less favorable to the Parent, the Company or the
relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Parent, the
Company or such Restricted Subsidiary with an unrelated Person
or, if there is no such comparable transaction, on terms that
are fair and reasonable to the Parent, the Company or such
Restricted Subsidiary; and
(ii) the Company delivers to the trustee:
(A) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $1.0 million, a Board Resolution of
the Parent certifying that such Affiliate Transaction complies
with clause (i) above and that such Affiliate Transaction has
been approved by a majority of the Disinterested Directors;
and
(B) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $10.0 million, a favorable opinion
as to the fairness to the Parent, the Company or the relevant
Subsidiary of such Affiliate Transaction from a financial
point of view issued by an accounting, appraisal or investment
banking firm that is, in the judgment of the Board of
Directors of the Parent, qualified to render such opinion and
is independent with respect to the Parent, the Company and the
Restricted Subsidiaries.
(b) Notwithstanding the preceding, the following shall
not be deemed to be Affiliate Transactions:
(i) any employment agreement or other employee
compensation plan or arrangement entered into by the Parent,
the Company or any of the Restricted Subsidiaries and approved
by a majority of the Disinterested Directors of Parent;
(ii) transactions between or among the Parent,
the Company and the Wholly Owned Restricted Subsidiaries;
(iii) Permitted Investments and Restricted
Payments that are permitted by the provisions of this
Indenture;
(iv) indemnities of officers, directors and
employees of the Parent, the Company or any Restricted
Subsidiary permitted by its charter, by-laws or statutory
provisions; and
(v) the payment of reasonable and customary
regular fees to directors of the Parent, the Company or any of
the Restricted Subsidiaries.
4.08. Repurchase of Notes at the Option of the Holder Upon a
Change of Control.
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(a) Within 30 days following any Change of Control, the
Company shall make an Offer to Purchase (a "Change of Control Offer") all or any
part (equal to $1,000 or an integral multiple thereof) of each Holder's Notes at
a purchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest thereon, if any, to the date of repurchase (subject
to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date) in accordance with the
procedures set forth in this Indenture for an Offer to Purchase.
(b) Notwithstanding the foregoing provisions of Section
4.08(a), the Company will not be required to make a Change of Control Offer upon
a Change of Control if (i) a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in Section 4.08(a) applicable to a Change of Control Offer made by the
Company and purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer or (ii) the Company has exercised its right to redeem
all of the Notes under paragraph 5 of the Notes.
4.09. Compliance Certificate. The Company and the Parent shall
each deliver to the Trustee within 90 days after the end of each fiscal year of
the Company an Officer's Certificate stating that in the course of the
performance by the signers of their duties as Officers of the Company or the
Parent they would normally have knowledge of any Default and whether or not the
signers know of any Default that occurred during such period. If they do, the
certificate shall describe the Default, its status and what action the Company
or the Parent is taking or propose to take with respect thereto. The Company
also shall comply with Section 314(a)(4) of the TIA.
4.10. Limitation on Issuances of Guarantees by Restricted
Subsidiaries. Neither the Parent nor the Company will permit any Restricted
Subsidiary, directly or indirectly, to guarantee any Indebtedness of the Company
or that of any Guarantor ("Guaranteed Indebtedness"), unless such Restricted
Subsidiary waives, and will not in any manner whatsoever claim or take the
benefit or advantage of, any rights of reimbursement, indemnity or subrogation
or any other rights against the Parent, the Company or any other Restricted
Subsidiary as a result of any payment by such Restricted Subsidiary under its
Guarantee; provided that this paragraph shall not be applicable to any guarantee
of any Restricted Subsidiary that existed at the time such Person became a
Restricted Subsidiary and was not Incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary. If the
Guaranteed Indebtedness is pari passu with the Notes or any Guaranty, then the
guarantee of such Guaranteed Indebtedness shall be pari passu with, or
subordinated to, the Guarantee. If the Guaranteed Indebtedness is subordinated
to the Notes or any Guaranty, then the guarantee of such Guaranteed Indebtedness
shall be subordinated to the Guarantee at least to the extent that the
Guaranteed Indebtedness is subordinated to the Notes.
4.11. Additional Guarantees and Liens.
(a) The Parent and the Company shall cause any entity
that becomes a Restricted Subsidiary after the Closing Date, within 10 Business
Days after such entity becomes a Restricted Subsidiary, to (i) execute a
Guarantee of the obligations of the Company under the Notes by executing and
delivering a Supplemental Indenture substantially in the form set forth in
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Exhibit B hereto, and (ii) execute any and all further Security Documents,
financing statements, agreements and instruments, upon substantially the same
terms as the Security Documents and in a form reasonably satisfactory to the
Trustee, that grants the Collateral Agent a first-priority Lien upon the
personal property and owned real property of such Restricted Subsidiary for the
benefit of the Holders, subject to Permitted Liens and the exceptions and
limitations set forth in the Security Documents, and take all such actions
(including the filing and recording of financing statements, fixture filings,
Mortgages and other documents) that may be required under any applicable law, or
which the Trustee or Collateral Agent may reasonably request to create such
first-priority Lien (subject to Permitted Liens and the exceptions and
limitations set forth in the Security Documents), all at the expense of the
Company, including all reasonable fees and expenses of counsel incurred by the
Trustee in connection therewith and (iii) deliver to the Trustee an Opinion of
Counsel, reasonably satisfactory to the Trustee, that such Guarantee and any
such Security Documents, as the case may be, are valid, binding and enforceable
obligations of such Subsidiary, subject to customary exceptions for bankruptcy,
fraudulent conveyance and equitable principles.
(b) The Parent and the Company shall, with respect to
each parcel of real property owned by the Company or any Guarantor, deliver to
the Collateral Agent, for the benefit of or addressed to the Trustee or the
Collateral Agent, as applicable, subject to Permitted Liens, the following:
(i) a fully executed, acknowledged, and recorded
Mortgage that secures the Notes, the Guarantees and any other
Obligations on a first-priority basis;
(ii) an opinion of local counsel reasonably
acceptable to the Collateral Agent, and the Trustee;
(iii) a fully-paid title insurance policy with no
exceptions other than Permitted Liens;
(iv) the most recent survey of each property
together with either (i) an updated survey certification from
the applicable surveyor stating that, based on a visual
inspection of the property and the knowledge of the surveyor,
there has been no change in the facts depicted in the survey
or (ii) an affidavit from the Company stating that there has
been no change, other than, in each case, changes reasonably
acceptable to the Collateral Agent, in the facts depicted in
the survey; and
(v) such other related deliveries and
deliverables as the Collateral Agent or the Trustee shall
reasonably require.
The Company shall provide each of the foregoing described in
clauses (b)(i) through (b)(v) above at its own expense and shall pay all
reasonable fees and expenses of counsel incurred by the Trustee and the
Collateral Agent in connection with each of the foregoing.
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4.12. Maintenance of Properties; Insurance. Subject to Article
V, the Parent and the Company shall, so long as any Notes are outstanding,
maintain or cause to be maintained in good repair, working order and condition
all material properties used or useful in the business of the Parent, the
Company and the Restricted Subsidiaries, subject to reasonable wear and tear,
and from time to time will make or cause to be made all appropriate repairs,
renewals and replacements thereof; provided, however, that nothing in this
Section 4.12 shall prevent the Parent, the Company or any Restricted Subsidiary
from discontinuing the use, operation or maintenance of any of such properties,
or disposing of them, if such discontinuance or disposal is desirable in the
conduct of the business of the Parent, the Company or any of the Restricted
Subsidiaries. The Parent and the Company will maintain or cause to be
maintained, with financially sound and reputable insurers, insurance with
respect to their properties and business and the properties and business of the
Restricted Subsidiaries against loss or damage of the kinds customarily insured
against by entities of established reputation engaged in the same or similar
businesses and similarly situated, of such types and in such amounts as are
customarily carried under similar circumstances by such other entities and shall
deliver to the Trustee no less often than once in each calendar year a certified
report from an independent insurance agent evidence of such insurance.
4.13. Taxes and Claims. The Parent and the Company shall pay,
and cause each of the Restricted Subsidiaries to pay, all material taxes,
assessments and other governmental charges imposed upon them or any of their
properties or assets or in respect of any of their franchises, business, income
or property before the same shall become delinquent, and all lawful claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums which have become due and payable and which by law have or
may become a lien upon any of its properties or assets, prior to the time when
any penalty or fine shall be incurred with respect thereto; provided, however,
that no such tax, assessment, charge or claim need be paid if being contested in
good faith by appropriate proceedings promptly instituted and diligently
conducted and if such reserve or other appropriate provision, if any, as shall
be required in conformity with GAAP shall have been made therefor.
4.14. Limitation on Liens. The Parent will not, and will not
permit any Restricted Subsidiary to, and the Company will not, and will not
permit any Restricted Subsidiary to, create, incur, assume or suffer to exist
any Lien on any of the assets or properties of the Parent, the Company or any
Restricted Subsidiary of any character, other than Permitted Liens.
4.15. Sale/Leaseback Transactions. (a) The Parent will not,
and will not permit any Restricted Subsidiary to, and the Company will not, and
will not permit any Restricted Subsidiary to, enter into any Sale/Leaseback
Transaction involving any assets or properties of the Parent, the Company or any
Restricted Subsidiary; provided that the Parent, the Company or any of the
Restricted Subsidiaries may enter into a Sale/Leaseback Transaction if:
(i) The Parent, the Company or the Restricted
Subsidiary, as applicable, could have (a) Incurred
Indebtedness in an amount equal to the Attributable Debt
relating to such Sale/Leaseback Transaction under Section
4.03(a) or (b) and (b) incurred a Lien to secure such
Indebtedness pursuant to Section 4.14;
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(ii) the gross cash proceeds of that
Sale/Leaseback Transaction are at least equal to the fair
market value, as determined in good faith by the Board of
Directors of the Parent and set forth in an Officer's
Certificate delivered to the Trustee, of the property that is
subject of such Sale/Leaseback Transaction; and
(iii) the transfer of assets in that
Sale/Leaseback Transaction is permitted by, and the Parent,
the Company or the Restricted Subsidiary, as the case may be,
applies the proceeds of such transactions in compliance with
Section 4.06.
(b) The foregoing restriction shall not apply to any
Sale/Leaseback Transaction if (i) the lease secures tower assets or tower
equipment, and (ii) such Sale/Leaseback Transaction is made in compliance with
Section 4.06; provided that the aggregate Net Proceeds in excess of $10.0
million from all such tower Sale/Leaseback Transactions shall be deemed Excess
Proceeds for the purposes of Section 4.06.
4.16. Compliance with Laws, Etc. The Parent and the Company
shall, so long as any Notes are outstanding, and shall cause each of their
Subsidiaries to, comply with the requirements of all applicable laws, rules,
regulations and orders of any governmental authority, including, without
limitation, all environmental laws, rules, regulations and orders, except for
such non-compliances as are not in the aggregate reasonably likely to have a
material adverse effect on the financial condition or results of operations of
the Parent, the Company and the Restricted Subsidiaries taken as a whole.
4.17. Corporate Existence. Subject to Article V, the Parent
and the Company shall do or cause to be done all things necessary to preserve
and keep in full force and effect (i) their corporate existence and the
corporate, partnership or other existence, as the case may be, of each of the
Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of each of the Parent,
the Company and any such Restricted Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of each of the Parent, the Company and the
Restricted Subsidiaries; provided, however, that the Parent and the Company
shall not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of the Restricted Subsidiaries
if the Board of Directors of the Parent shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Parent, the
Company and the Restricted Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders of the Notes.
4.18. Impairment of Rights. The Parent and the Company agree,
on their behalf and on behalf of each of the Restricted Subsidiaries, that the
Parent, the Company and the Restricted Subsidiaries shall not, directly or
indirectly, (a) subject to applicable law, create or permit to exist or become
effective any restriction of any kind on the ability of the Parent, the Company
or any of the Restricted Subsidiaries, as applicable, to vote the Capital Stock
held by the Parent, the Company or such Restricted Subsidiary in any of the
Restricted Subsidiaries to amend such Restricted Subsidiary's organizational
documents or remove or replace any member of such Restricted Subsidiary's Board
of Directors or (b) in any way impair the security interest granted pursuant to
the Security Documents or the ability of the Trustee, the Collateral Agent or
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the Holders to exercise their rights and remedies under this Indenture, the
Notes, the Guarantees or the Security Documents.
4.19. Interests in Non-Owned Real Property; Cell Tower Leases.
Notwithstanding any other provision of this Indenture, none of the Company or
any Guarantor shall obtain, possess, hold, acquire or otherwise maintain any
interest in real property (including but not limited to leasehold interests in
cell towers), other than fee ownership interests in real property, unless all of
the Capital Stock of such entity is pledged as security for the Notes pursuant
to the Pledge Agreement.
4.20. Further Assurances. The Parent shall and shall cause its
Restricted Subsidiaries to, and the Company shall and shall cause its Restricted
Subsidiaries to, execute, acknowledge, deliver, record, re-record, file,
re-file, register and re-register, as applicable, any and all such further acts,
deeds, conveyances, security agreements, mortgages, assignments, estoppel
certificates, financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates, assurances and other
instruments as may be required under applicable law from time to time in order
to:
(a) carry out more effectively the purposes of this
Indenture, the Notes, and the Security Documents;
(b) subject to the Liens created by any of the Security
Documents any of the properties, rights or interests required to be encumbered
thereby, subject only to Permitted Liens;
(c) perfect and maintain the validity, effectiveness and
priority of any of the Security Documents and the Liens intended to be created
thereby; and
(d) better assure, convey, grant, assign, transfer,
preserve, protect and confirm to the Collateral Agent or the Trustee any of the
rights granted now or hereafter intended by the parties thereto to be granted to
the Collateral Agent or the Trustee under any other instrument executed in
connection with the Indenture Documents.
ARTICLE V
SUCCESSOR COMPANY
5.01. When Parent, Company and Guarantors May Merge or
Transfer Assets. (a) The Parent will not consolidate with, merge with or into,
or sell, convey, transfer, lease or otherwise dispose of all or substantially
all of its property and assets (as an entirety or substantially an entirety in
one transaction or a series of related transactions) to, any Person (other than
the Company or a Restricted Subsidiary) or permit any Person (other than the
Company or a Restricted Subsidiary) to merge with or into the Parent unless:
(i) the Parent shall be the surviving or
continuing Person, or the Person (if other than the Parent)
formed by such consolidation or into which the Parent is
merged or that acquired or leased such property and assets of
the Parent shall be a corporation organized and validly
existing under the laws of the United States of America or any
jurisdiction thereof and shall expressly assume, by a
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supplemental indenture, executed and delivered to the Trustee,
all of the obligations of the Parent under the Guarantee;
(ii) immediately after giving effect to such
transaction on a pro forma basis, no Default or Event of
Default shall have occurred and be continuing;
(iii) immediately after giving effect to such
transaction on a pro forma basis the Parent, or any Person
becoming the successor obligor, as the case may be, shall show
an improvement in the Leverage Ratios as set forth under
Section 4.03(a);
(iv) if the Parent is not the surviving or
continuing Person, each Guarantor shall have delivered a
written instrument in form satisfactory to the Trustee
confirming its Guarantee; and
(v) the Company delivers to the Trustee an
Officer's Certificate (attaching the arithmetic computations
to demonstrate compliance with clause (iii)) and an Opinion of
Counsel, in each case stating that such consolidation, merger
or transfer and such supplemental indenture, if any, complies
with this provision and that all conditions precedent provided
for herein relating to such transaction have been complied
with;
provided, however, that clause (iii) above shall not apply if,
in the good faith determination of the Board of Directors of
the Parent, whose determination shall be evidenced by a Board
Resolution, the sole purpose of such transaction is to change
the state of incorporation of the Parent.
(b) The Company will not consolidate with, merge with or
into, or sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets (as an entirety or substantially an
entirety in one transaction or a series of related transactions) to, any Person
(other than the Parent or a Restricted Subsidiary) or permit any Person (other
than the Parent or a Restricted Subsidiary) to merge with or into the Company
unless:
(i) the Company shall be the surviving or
continuing Person, or the Person (if other than the Company)
formed by such consolidation or into which the Company is
merged or that acquired or leased such property and assets of
the Company shall be a corporation organized and validly
existing under the laws of the United States of America or any
jurisdiction thereof and shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee,
all of the obligations of the Company on all of the Notes and
under this Indenture;
(ii) immediately after giving effect to such
transaction on a pro forma basis, no Default or Event of
Default shall have occurred and be continuing;
(iii) immediately after giving effect to such
transaction on a pro forma basis the Company, or any Person
becoming the successor obligor of the Notes, as the case may
be, shall show an improvement in the Leverage Ratios as set
forth under Section 4.03(a);
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(iv) if the Company is not the surviving or
continuing Person, each Guarantor shall have delivered a
written instrument in form satisfactory to the Trustee
confirming its Guarantee; and
(v) the Company delivers to the Trustee an
Officer's Certificate (attaching the arithmetic computations
to demonstrate compliance with clause (iii)) and an Opinion of
Counsel, in each case stating that such consolidation, merger
or transfer and such supplemental indenture, if any, complies
with this provision and that all conditions precedent provided
for herein relating to such transaction have been complied
with; provided, however, that clause (iii) above shall not
apply if, in the good faith determination of the Board of
Directors of the Parent, whose determination shall be
evidenced by a Board Resolution, the sole purpose of such
transaction is to change the state of incorporation of the
Company.
(c) The Company will not permit any Guarantor (other than
any Guarantor whose Guarantee is to be released in accordance with the terms of
the Guarantee and this Indenture in connection with any transaction complying
with the provisions of Section 4.06, or the Parent (transactions with respect to
the Parent being governed by Section 5.01(a))) to, in a single transaction or a
series of related transactions, (x) consolidate with or merge with or into any
other Person (other than the Parent, the Company or a Guarantor which is a
Wholly Owned Restricted Subsidiary) or (y) directly or indirectly, transfer,
sell, lease or otherwise dispose of all or substantially all of its assets,
unless:
(i) the Guarantor shall be the surviving or
continuing Person, or the Person (if other than the Guarantor)
formed by such consolidation or into which the Guarantor is
merged or that acquired or leased such property and assets of
the Guarantor shall be organized under the laws of the United
States of America or any jurisdiction thereof and shall
expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, all of the Guarantor's obligations
under this Indenture;
(ii) immediately after giving effect to such
transaction on a pro forma basis, no Default or Event of
Default shall have occurred and be continuing;
(iii) immediately after giving effect to such
transaction on a pro forma basis, the Company or any Person
becoming a successor obligor on the Notes, as the case may be,
shall show an improvement in the Leverage Ratios under Section
4.03(a); and
(iv) the Company shall have delivered to the
Trustee an Officer's Certificate (attaching the arithmetic
computations to demonstrate compliance with clause (iii)) and
an Opinion of Counsel, in each case stating that such
consolidation, merger or transfer and such supplemental
indenture, if any, complies with this provision and that all
conditions precedent provided for herein relating to such
transaction have been complied with.
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ARTICLE VI
EVENTS OF DEFAULTS AND REMEDIES
6.01. Events of Default. An "Event of Default" occurs if:
(a) the Company or any Guarantor (i) defaults in the
payment of the principal of (or premium, if any, on) any Note when the same
becomes due and payable at its Stated Maturity, upon required redemption or
repurchase, upon declaration or otherwise, or (ii) fails to redeem or purchase
Notes when required pursuant to this Indenture or the Notes;
(b) the Company or any Guarantor defaults in any payment
of interest on any Note and such default continues for a period of 30 days;
(c) the Company or any Guarantor fails to comply with
Section 5.01 or fails to make or consummate an Offer to Purchase in accordance
with Section 4.06 or 4.08;
(d) the Company or any Guarantor fails to comply with any
of its agreements in the Notes or this Indenture, any Guarantee or any Security
Document (other than those referred to in (a), (b) or (c) above) and such
failure continues for 30 days after the notice specified below;
(e) there occurs with respect to any issue or issues of
Indebtedness of the Parent, the Company or any of the Restricted Subsidiaries
having an outstanding principal amount of $10.0 million or more in the aggregate
for all such issues of all such Persons, whether such Indebtedness now exists or
shall hereafter be created, (1) an event of default that entitles the holder
thereof to declare such Indebtedness to be due and payable prior to its Stated
Maturity and/or (2) a default in any payment when due at final maturity of any
such Indebtedness;
(f) any final judgment or order (not covered by
insurance) for the payment of money in excess of $10.0 million in the aggregate
for all such final judgments or orders against all such Persons (treating any
deductibles, self-insurance or retention as not so covered) shall be rendered
against the Parent, the Company or any of the Restricted Subsidiaries and shall
not be paid or discharged, and there shall be any period of 30 consecutive days
following entry of the final judgment or order that causes the aggregate amount
for all such final judgments or orders outstanding and not paid or discharged
against all such Persons to exceed $10.0 million during which a stay of
enforcement of such final judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect;
(g) a court having jurisdiction in the premises enters a
decree or order for (1) relief in respect of the Parent, the Company or any of
the Restricted Subsidiaries in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, (2)
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Parent, the Company or any of the
Restricted Subsidiaries or for all or substantially all of the property and
assets of the Parent, the Company or any of the Restricted Subsidiaries or (3)
the winding up or liquidation of the affairs of the Parent, the Company or any
of the Restricted Subsidiaries and, in each case, such decree or order shall
remain unstayed and in effect for a period of 30 consecutive days;
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(h) the Parent, the Company or any Restricted Subsidiary
(1) commences a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consents to the entry of an
order for relief in an involuntary case under any such law, (2) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Parent, the Company
or any of the Restricted Subsidiaries or for all or substantially all of the
property and assets of the Parent, the Company or any of the Restricted
Subsidiaries or (3) effects any general assignment for the benefit of creditors;
(i) any Security Document shall cease to be in full force
and effect or enforceable in accordance with its terms, other than in accordance
with its terms;
(j) except upon the release of any Guarantee in
accordance with this Indenture, (1) any Guarantee ceases to be in full force and
effect or is declared null and void or (2) any Guarantor denies that it has any
further liability under the Guarantee or gives notice to that effect; or
(k) there shall have occurred any loss, suspension,
revocation or non-renewal of the wireless licenses of the Parent, the Company
and those of the Restricted Subsidiaries covering 50% or more of the total
potential customers covered by all of the wireless licenses of the Parent, the
Company and those of the Restricted Subsidiaries.
The foregoing shall constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
A Default under clause (d) above is not an Event of Default
until the Trustee notifies the Company or the Holders of at least 25% in
principal amount of the outstanding Notes notify the Company and the Trustee of
the Default and the Company or the relevant Guarantor, as applicable, do not
cure such Default within the time specified after receipt of such notice. Such
notice must specify the Default, demand that it be remedied and state that such
notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officer's Certificate
of any event which with the giving of notice or the lapse of time would become
an Event of Default under this Section 6.01, its status and what action the
Company is taking or proposes to take with respect thereto.
6.02. Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.01(g) or (h) with respect to the
Company) occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding, by written notice to
the Company (and to the Trustee if such notice is given by the Holders), may,
and the Trustee at the request of such Holders shall, declare the principal of
all outstanding Notes, together with premium, if any, and all accrued and unpaid
interest thereon, to be immediately due and payable. Upon a declaration of
acceleration, such principal of, premium, if any, and accrued interest shall be
immediately due and payable. In the event of a declaration of
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acceleration because an Event of Default specified in Section 6.01(e) has
occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default triggering such
Event of Default pursuant to Section 6.01(e) shall be remedied or cured by the
Company or the relevant Subsidiary or waived by the Holders of the relevant
Indebtedness within 30 days after the occurrence thereof. If an Event of Default
specified in Section 6.01(g) or (h) above occurs with respect to the Parent or
the Company, the principal of, premium, if any, and accrued interest on the
Notes then outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder. At any time after declaration of acceleration, but before a judgment or
decree for the payment of the money due has been obtained by the Trustee, the
Holders of at least a majority in principal amount of the outstanding Notes by
written notice to the Company and to the Trustee, may waive all past defaults
and rescind and annul a declaration of acceleration and its consequences if (i)
all existing Events of Default, other than the nonpayment of the principal of,
premium, if any, and interest on the Notes that have become due solely by such
declaration of acceleration, have been cured or waived and (ii) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of, premium, if any, or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
6.04. Waiver of Past Defaults. The Holders of a majority in
principal amount of the Notes by notice to the Trustee may waive on behalf of
the Holders of all of the Notes an existing Default and its consequences except
(a) a Default in the payment of the principal of, premium, if any, or interest
on a Note, (b) a Default arising from the failure to redeem or purchase any Note
when required pursuant to the terms of this Indenture or (c) a Default in
respect of a provision that under Section 9.02 cannot be amended without the
consent of each Holder affected. When a Default is waived, it is deemed cured,
but no such waiver shall extend to any subsequent or other Default or impair any
consequent right.
6.05. Control by Majority. The Holders of a majority in
principal amount of the Notes may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Holders or would involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion against all losses and expenses caused by taking or
not taking such action.
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6.06. Limitation on Suits. (a) Except to enforce the right to
receive payment of principal, premium (if any) or interest when due, no Holder
may pursue any remedy with respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee written
notice stating that an Event of Default is continuing;
(ii) the Holders of at least 25% in principal
amount of the Notes make a written request to the Trustee to
pursue the remedy;
(iii) such Holder or Holders offer to the Trustee
reasonable security or indemnity against any costs, liability
or expense;
(iv) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of
security or indemnity; and
(v) the Holders of a majority in principal
amount of the Notes do not give the Trustee a direction
inconsistent with the request during such 60-day period.
(b) A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority over another
Holder.
6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of, premium, if any, and interest on the Notes held by such
Holder, on or after the respective due dates expressed or provided for in the
Notes, or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Notes for the whole amount then due and
owing (together with interest on overdue principal and (to the extent lawful) on
any unpaid interest at the rate provided for in the Notes) and the amounts
provided for in Section 7.07.
6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders allowed in
any judicial proceedings relative to the Company, the Parent, any Subsidiary or
Guarantor, their creditors or their property and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
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6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on
the Notes for principal, premium, if any, and interest, respectively;
and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Holder and the Company a notice that
states the record date, the payment date and amount to be paid.
6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in principal amount of the Notes.
6.12. Waiver of Stay, Extension or Usury Laws. Neither the
Company nor any Guarantor (to the extent it may lawfully do so) shall at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company and each Guarantor (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and shall not hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VII
TRUSTEE
7.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
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(i) the Trustee undertakes to perform such
duties and only such duties as are specifically set forth in
this Indenture and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
Section 7.01(b);
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Trust Officer unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts;
(iii) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.05; and
(iv) No provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers,
if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to Sections 7.01(a), (b) and (c).
(e) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company.
(f) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(g) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section 7.01 and to the provisions of
the TIA.
7.02. Rights of Trustee. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document.
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(b) Before the Trustee acts or refrains from acting, it
may require an Officer's Certificate or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on the Officer's Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that the Trustee's conduct does
not constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice
or opinion of counsel with respect to legal matters relating to this Indenture
and the Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other paper or document unless requested in
writing to do so by the Holders of not less than a majority in principal amount
of the Notes at the time outstanding, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine (in good faith in furtherance of
its rights and powers expressly set forth in this Indenture) to make such
further inquiry or investigation, it shall be entitled upon written notice to
examine the books, records and premises of the Company, personally or by agent
or attorney, during regular business hours and subject to a customary
confidentiality agreement between the Company and the Trustee and its agent and
attorney.
7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or its Affiliates with the same rights it
would have if it were not Trustee. However, in the event that the Trustee
acquires any conflicting interest it must eliminate such conflict within 90
days, apply to the Commission for permission to continue as trustee or resign.
Any Paying Agent, Registrar or co-paying agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture, any Guarantee or the Notes, including the validity,
effectiveness or perfection of the security interests in the Collateral granted
pursuant to Article 10 hereof, it shall not be accountable for the Company's use
of the proceeds from the Notes, and it shall not be responsible for any
statement of the Company or any Guarantor in this Indenture or in any document
issued in connection with the sale of the Notes or in the Notes other than the
Trustee's certificate of authentication. The Trustee shall not be charged with
knowledge of any Default or Event of Xxxxxxx xxxxx Xxxxxxxx 0.00(x), (x), (x),
(x), (x), (x) or (k) unless either (a) a Trust Officer shall have actual
knowledge thereof or (b) the
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Trustee shall have received notice thereof in accordance with Section 12.02 from
the Company, any Guarantor or any Holder.
7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Holder notice of the Default within 90 days after it occurs, provided that in
the event that the Trustee first becomes aware of a Default after 90 days
subsequent to its occurrence, the Trustee shall mail to each Holder notice of
the Default as soon thereafter as practicable. Except in the case of a Default
in payment of principal of, premium, if any, or interest on any Note (including
payments pursuant to the redemption provisions of such Note, if any), the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of Holders.
7.06. Reports by Trustee to Holders. Within 60 days after each
May 15 beginning with May 15, 2004, the Trustee shall mail to each Holder a
brief report dated as of such May 15 that complies with Section 313(a) of the
TIA (but if no event described in Section 313(a) of the TIA has occurred within
the 12 months preceding the reporting date, no report need be transmitted). The
Trustee shall also comply with Section 313(b) of the TIA. The Trustee will also
transmit by mail all reports required by Section 313(c) of the TIA.
A copy of each report at the time of its mailing to Holders
shall be mailed by the Trustee to the Company and shall be filed with the
Commission and each stock exchange (if any) on which the Notes are listed in
accordance with Section 313(d) of the TIA. The Company agrees to notify promptly
the Trustee whenever the Notes become listed on any stock exchange and of any
delisting thereof.
7.07. Compensation and Indemnity. The Company shall pay to the
Trustee from time to time reasonable compensation for its services hereunder as
the Company and the Trustee shall from time to time agree in writing. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company and each Guarantor, jointly and severally shall indemnify
the Trustee against any and all loss, liability or expense (including reasonable
attorneys' fees) incurred by or in connection with the administration of this
trust and the performance of its duties hereunder. The Trustee shall notify the
Company of any claim for which it may seek indemnity promptly upon obtaining
actual knowledge thereof; provided, however, that any failure so to notify the
Company shall not relieve the Company or any Guarantor of its indemnity
obligations hereunder. The Company shall defend the claim and the Trustee shall
provide reasonable cooperation at the Company's expense in the defense. The
Trustee may have separate counsel and the Company and the Guarantors, as
applicable, shall pay the reasonable fees and expenses of such counsel;
provided, however, that the Company and the Guarantors shall not be required to
pay such fees and expenses if they assume the Trustee's defense and, in the
reasonable judgment of the Trustee's outside counsel, there is no conflict of
interest between the Company and the Guarantors, on the one hand, and the
Trustee, on the other hand, in connection with such defense. The Company need
not reimburse any expense or
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indemnify against any loss, liability or expense incurred by the Trustee through
its own willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a lien prior to the Notes on all money or property
held or collected by the Trustee, provided that such lien shall not apply to
money or property held in trust to pay principal of, premium, if any, and
interest on particular Notes on a non pro rata basis.
The Company's payment obligations pursuant to this Section
7.07 shall survive the satisfaction or discharge of this Indenture, any
rejection or termination of this Indenture under any bankruptcy law or the
resignation or removal of the Trustee. Without prejudice to any other rights
available to the Trustee under applicable law, when the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.01(g) or (h) with
respect to the Company, the expenses are intended to constitute expenses of
administration under any bankruptcy law.
7.08. Replacement of Trustee. (a) The Trustee may resign at
any time by so notifying the Company. The Holders of a majority in principal
amount of the Notes may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(i) the Trustee fails to comply with Section
7.10;
(ii) the Trustee is adjudged bankrupt or
insolvent or an order for relief is entered with respect to
the Trustee under any Bankruptcy Law;
(iii) a receiver or other public officer takes
charge of the Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of
acting.
(b) If the Trustee resigns, is removed by the Company or
by the Holders of a majority in principal amount of the Notes and such Holders
do not reasonably promptly appoint a successor Trustee, or if a vacancy exists
in the office of Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee.
(c) A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject to
the lien provided for in Section 7.07.
(d) If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring Trustee or
the Holders of 10% in principal amount of the Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
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(e) If the Trustee fails to comply with Section 7.10,
unless the Trustee's duty to resign is stayed as provided in TIA Section 310(b),
any Holder who has been a bona fide holder of a Note for at least six months may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
shall continue for the benefit of the retiring Trustee.
7.09. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to
the Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of the Trustee shall have.
7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a). The Trustee shall have a
combined capital and surplus of at least $100,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b), subject to its right to apply for a stay of its duty to resign
under the penultimate paragraph of TIA Section 310(b); provided, however, that
there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities or certificates of interest
or participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
7.11. Preferential Collection of Claims Against the Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
8.01. Discharge of Liability on Notes; Defeasance. (a) Subject
to Section 8.01(c), when (i) all outstanding Notes (other than Notes replaced or
paid pursuant to Section 2.07) have been canceled or delivered to the Trustee
for cancellation or (ii) all outstanding Notes not previously delivered for
cancellation have become due and payable, whether at maturity or as
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a result of the mailing of a notice of redemption pursuant to Article III, and
the Company irrevocably deposits with the Trustee funds in an amount sufficient
or U.S. Government Obligations, the principal of and interest on which will be
sufficient, or a combination thereof sufficient, in the written opinion of a
nationally recognized firm of independent public accountants delivered to the
Trustee (which delivery shall only be required if U.S. Government Obligations
have been so deposited) to pay the principal of, premium, if any, and interest
on the outstanding Notes when due at maturity or upon redemption of, including
interest thereon to maturity or such redemption date (other than Notes replaced
or paid pursuant to Section 2.07) and if in either case the Company pays all
other sums payable hereunder by the Company, then this Indenture shall, subject
to Section 8.01(c), cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officer's Certificate and an Opinion of Counsel and at the
cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at
any time may terminate (i) all of its obligations under the Notes and this
Indenture ("legal defeasance option") and (ii) its obligations under Sections
4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.10 4.11, 4.12, 4.13, 4.14, 4.15,
4.16, 4.17 (with respect to the Parent and the Restricted Subsidiaries only) or
4.18 and the operation of Section 5.01(a), 5.01(b)(iii), 5.01(c), 6.01(c) (with
respect to Offers to Purchase only), 6.01(d), 6.01(e), 6.01(f), 6.01(g) (with
respect to the Parent and the Restricted Subsidiaries only), 6.01(h) (with
respect to the Parent and the Restricted Subsidiaries only), 6.01(i), 6.01(j)
and 6.01(k) ("covenant defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option. In the event that the Company terminates all of its obligations under
the Notes and this Indenture by exercising its legal defeasance option, the
obligations under the Guarantees shall each be terminated simultaneously with
the termination of such obligations.
If the Company exercises its legal defeasance option, payment
of the Notes may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Notes may not
be accelerated because of an Event of Default specified in Section 6.01(c) (with
respect to Offers to Purchase only), 6.01(d), 6.01(e), 6.01(f), 6.01(g) (with
respect to the Parent and the Restricted Subsidiaries only), 6.01(h) (with
respect to the Parent and the Restricted Subsidiaries only), 6.01(i) 6.01(j) or
6.01(k) or because of the failure of the Company to comply with Section 5.01(a),
5.01(b)(iii) or 5.01(c).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a)
and 8.01(b), the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07,
2.08, 2.09, 7.07, 7.08 and in this Article VIII shall survive until the Notes
have been paid in full. Thereafter, the Company's obligations in Sections 7.07,
8.04 and 8.05 shall survive.
8.02. Conditions to Defeasance. (a) The Company may exercise
its legal defeasance option or its covenant defeasance option only if:
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(i) the Company irrevocably deposits in trust
with the Trustee money in an amount sufficient or U.S.
Government Obligations, the principal of and interest on which
will be sufficient, or a combination thereof sufficient, to
pay the principal, premium (if any) and interest on the Notes
when due at maturity or redemption, as the case may be,
including interest thereon to maturity or such redemption
date;
(ii) the Company delivers to the Trustee a
certificate from a nationally recognized firm of independent
accountants expressing their opinion that the payments of
principal and interest when due and without reinvestment on
the deposited U.S. Government Obligations plus any deposited
money without investment will provide cash at such times and
in such amounts as will be sufficient to pay principal,
premium (if any) and interest when due on all the Notes to
maturity or redemption, as the case may be;
(iii) 91 days pass after the deposit is made and
during the 91-day period no Default specified in Section
6.01(g) or (h) with respect to the Company occurs which is
continuing at the end of the period;
(iv) the deposit does not constitute a default
under any other agreement binding on the Company;
(v) the Company delivers to the Trustee an
Opinion of Counsel to the effect that the trust resulting from
the deposit does not constitute, or is qualified as, a
regulated investment company under the Investment Company Act
of 1940;
(vi) in the case of the legal defeasance option,
the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (1) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (2) since the date of this Indenture there has been
a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders will not recognize
income, gain or loss for federal income tax purposes as a
result of such defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance had
not occurred;
(vii) in the case of the covenant defeasance
option, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders will not
recognize income, gain or loss for federal income tax purposes
as a result of such covenant defeasance and will be subject to
federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant
defeasance had not occurred; and
(viii) the Company delivers to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that all conditions precedent to the defeasance
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and discharge of the Notes as contemplated by this Article
VIII have been complied with.
(b) Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of Notes at a future
date in accordance with Article III.
8.03. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of, premium, if any, and interest on the
Notes.
8.04. Repayment to the Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any money or U.S.
Government Obligations held by either of them as provided in this Article VIII
which, in the written opinion of a nationally recognized firm of independent
public accountants delivered to the Trustee (which delivery shall only be
required if U.S. Government Obligations have been so deposited), are in excess
of the amount thereof which would then be required to be deposited to effect an
equivalent discharge or defeasance in accordance with this Article VIII.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon written request any money
held by them for the payment of principal, premium, if any, or interest that
remains unclaimed for two years, and, thereafter, Holders entitled to the money
must look to the Company for payment as general creditors and the Trustee and
the Paying Agent shall have no further liability with respect to such monies.
8.05. Indemnity for Government Obligations. The Company shall
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against deposited U.S. Government Obligations or the principal
and interest received on such U.S. Government Obligations.
8.06. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to this Article VIII until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with this Article VIII; provided, however, that if the Company has
made any payment of principal of, premium, if any, or interest on any Notes
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
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ARTICLE IX
AMENDMENTS
9.01. Without Consent of Holders. The Company, the Guarantors
and the Trustee may amend or supplement this Indenture, the Notes, the
Guarantees or the Security Documents without notice to or consent of any Holder:
(i) to cure any ambiguity, omission, defect or
inconsistency;
(ii) to comply with Article V or Article XI;
(iii) to provide for uncertificated Notes in
addition to or in place of certificated Notes; provided,
however, that the uncertificated Notes are issued in
registered form for purposes of Section 163(f) of the Code or
in a manner such that the uncertificated Notes are described
in Section 163(f)(2)(B) of the Code;
(iv) to add additional Guarantees with respect to
the Notes (including the execution of a supplemental
indenture);
(v) to add to the covenants of the Company for
the benefit of the Holders or to surrender any right or power
herein conferred upon the Company;
(vi) to make any change that does not adversely
affect the rights of any Holder, subject to the provisions of
this Indenture;
(vii) to comply with any requirement of the
Commission in connection with qualifying, or maintaining the
qualification of, this Indenture under the TIA; or
(viii) if necessary, in connection with any
addition or release of Collateral permitted under the terms of
this Indenture or the Security Documents.
The Company shall also be entitled to releases of the
Collateral or the Guarantees as described in Sections 10.03 and 11.03.
9.02. With Consent of Holders. (a) The Company, the Guarantors
and the Trustee may amend this Indenture, the Notes, the Guarantees or the
Security Documents without notice to any Holder but with the written consent of
the Holders of at least a majority in principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange for the Notes). However, without the consent of each Holder affected,
an amendment may not:
(i) reduce the amount of Notes whose Holders
must consent to an amendment;
(ii) reduce the rate of or extend the time for
payment of interest on any Note;
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(iii) reduce the principal of or extend the Stated
Maturity of any Note;
(iv) reduce the premium payable upon the
redemption of any Note or change the time at which any Note
may be redeemed in accordance with Article III;
(v) make any Note payable in money other than
that stated in the Note;
(vi) impair the right of any Holder to receive
payment of principal of, premium, if any, and interest on,
such Holder's Notes on or after the due dates therefor or to
institute suit for the enforcement of any payment on or with
respect to such Holder's Notes;
(vii) make any change in Section 6.04 or 6.07 or
the second sentence of this Section 9.02; or
(viii) modify the Guarantees in any manner adverse
to the Holders.
The consent of the Holders under this Section 9.02 shall not
be necessary to approve the particular form of any proposed amendment. It shall
be sufficient if such consent approves the substance thereof.
(b) After an amendment under this Section 9.02 becomes
effective, the Company shall mail to Holders a notice briefly describing such
amendment. The failure to give such notice to all Holders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section 9.02.
9.03. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Notes shall comply with the TIA as then in effect.
9.04. Revocation and Effect of Consents and Waivers. (a) A
consent to an amendment or a waiver by a Holder of a Note shall bind the Holder
and every subsequent Holder of that Note or portion of the Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
or waiver is not made on the Note. However, any such Holder or subsequent Holder
may revoke the consent or waiver as to such Holder's Note or portion of the Note
if the Trustee receives the notice of revocation before the date on which the
Trustee receives an Officer's Certificate from the Company certifying that the
requisite number of consents have been received. After an amendment or waiver
becomes effective, it shall bind every Holder. An amendment or waiver becomes
effective upon the (i) receipt by the Company or the Trustee of the requisite
number of consents, (ii) satisfaction of conditions to effectiveness as set
forth in this Indenture and any indenture supplemental hereto containing such
amendment or waiver and (iii) execution of such amendment or waiver (or
supplemental indenture) by the Company and the Trustee.
(b) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
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Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
9.05. Notation on or Exchange of Notes. If an amendment
changes the terms of a Note, the Trustee may require the Holder of the Note to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Note regarding the changed terms and return it to the Holder. Alternatively, if
the Company or the Trustee so determines, the Company in exchange for the Note
shall issue and the Trustee, upon receipt of an Authentication Order, shall
authenticate a new Note that reflects the changed terms. Failure to make the
appropriate notation or to issue a new Note shall not affect the validity of
such amendment.
9.06. Trustee to Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article IX if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officer's Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture and that such amendment
is the legal, valid and binding obligation of the Company and the Guarantors
enforceable against them in accordance with its terms, subject to customary
exceptions, and complies with the provisions hereof (including Section 9.03).
9.07. Payment for Consent. None of the Company, any Guarantor
or any Affiliate of the Company or any Guarantor shall, directly or indirectly,
pay or cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture, the Notes, or any
other Indenture Document (including the Security Documents) unless such
consideration is offered to be paid to all Holders that so consent, waive or
agree to amend in the time frame set forth in solicitation documents relating to
such consent, waiver or agreement.
ARTICLE X
COLLATERAL AND SECURITY
10.01. Security Documents. The due and punctual payment of the
principal of, premium, if any, and interest on the Notes when and as the same
shall be due and payable, whether on an interest payment date, at maturity, by
acceleration, repurchase, redemption or otherwise, and interest on the overdue
principal of, premium, if any, and interest on the Notes and performance of all
other Obligations of the Company and the Guarantors to the Holders or the
Trustee under this Indenture and the Notes, according to the terms hereunder or
thereunder, are secured as provided in the Security Documents which define the
terms of the Liens that secure the Obligations and provide that the Liens
granted thereunder secure the Obligations on a first-priority basis, but subject
to any Permitted Liens that may have priority over the Lien and security
interests created by the Security Documents. Each Holder, by its acceptance of a
Note,
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consents and agrees to all of the terms of the Security Documents (including the
provisions providing for the exercise of remedies and release of Collateral) as
the same may be in effect or may be amended from time to time in accordance with
their terms, and authorizes and directs the Trustee to enter into the Security
Documents and to perform its obligations and exercise its rights thereunder in
accordance therewith. The Company shall deliver to the Trustee (if it is not
itself then the Collateral Agent) copies of all documents delivered to the
Collateral Agent pursuant to the Security Documents, and the Company and the
Parent will do or cause to be done all such acts and things as may be required
by the next sentence of this Section 10.01, to assure and confirm to the Trustee
the Liens upon the Collateral contemplated hereby, by the Security Documents or
any part thereof, as from time to time constituted, so as to render the same
available for the security and benefit of this Indenture and of the Obligations
secured hereby, according to the intent and purposes herein expressed. The
Company and the Parent shall take, and shall cause the Restricted Subsidiaries
to take, any and all actions reasonably required to cause the Security Documents
to create and maintain, as security for the Obligations of the Company and the
Guarantors hereunder, a valid and enforceable perfected first-priority Lien on
all the Collateral, in favor of the Collateral Agent for the ratable benefit of
the Holders, but subject to any Permitted Liens that may have priority over the
Lien and security interests created by the Security Documents. The Trustee and
the Company hereby acknowledge and agree that the Collateral Agent holds the
Collateral for the ratable benefit of the Holders and the Trustee pursuant to
the terms of the Indenture and the Security Documents.
10.02. Recording and Opinions. (a) The Company will furnish to
the Trustee on May 15 in each year (or the first Business Day immediately
thereafter if May 15 of such year is not a Business Day) beginning with May 15,
2004, an Opinion of Counsel, which may be rendered by internal counsel to the
Company, dated as of such date, either:
(i) (A) stating that, in the opinion of such
counsel, action has been taken with respect to the recording,
registering, filing, re-recording, re-registering and
re-filing of all supplemental indentures, financing
statements, continuation statements or other instruments of
further assurance as is necessary to maintain and perfect the
Lien of the Security Documents and reciting with respect to
the Liens on the Collateral the details of such action or
referring to prior Opinions of Counsel in which such details
are given, and (B) stating that, in the opinion of such
counsel, based on relevant laws as in effect on the date of
such Opinion of Counsel, all financing statements and
continuation statements have been executed and filed that are
necessary as of such date and during the succeeding 12 months
fully to preserve, perfect and protect, to the extent such
protection and preservation are possible by filing, the rights
of the Holders and the Trustee hereunder and the rights of the
Holders, the Trustee and the Collateral Agent under the
Security Documents with respect to the Liens on the
Collateral; or
(ii) stating that, in the opinion of such
counsel, no such action is necessary to maintain and perfect
such Lien and assignment.
(b) The Company will otherwise comply with the provisions
of TIA Section 314(b).
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10.03. Release of Collateral. (a) Subject to Sections
10.03(b), (c), (d) and 10.08, Collateral may be released from the Lien and
security interest created by the Security Documents at any time or from time to
time in accordance with the provisions of the Security Documents or as provided
hereby. Upon the request of the Company pursuant to an Officer's Certificate
certifying that all conditions precedent hereunder have been met and without the
consent of any Holder, the Company and the Guarantors will be entitled to
releases of assets included in the Collateral from the Liens securing the Notes
under any one or more of the following circumstances:
(i) if such asset is sold, transferred, leased
or otherwise disposed of in a transaction that is permitted or
not prohibited by Section 4.06;
(ii) to enable the Company or any Guarantor to
consummate any sale, lease, conveyance or other disposition of
any assets or rights permitted or not prohibited under Section
4.06;
(iii) in respect of assets to the extent they are
subject to a Permitted Lien;
(iv) if all of the Capital Stock of any
Subsidiary of the Parent or the Company that is pledged to the
Collateral Agent is released in accordance with the terms of
this Indenture and the Security Documents, such Subsidiary's
assets will also be released;
(v) if any Restricted Subsidiary that is a
Guarantor is released from its Guarantee in accordance with
the provisions of this Indenture and the Security Documents,
the Capital Stock issued by such Subsidiary that is pledged to
the Collateral Agent and such Subsidiary's assets will also be
released;
(vi) if any Restricted Subsidiary is designated
an Unrestricted Subsidiary, or such Subsidiary otherwise
ceases to be a Restricted Subsidiary, in accordance with the
provisions of this Indenture, the Capital Stock issued by such
Subsidiary that is pledged to the Collateral Agent and such
Subsidiary's assets will be released; or
(vii) pursuant to an amendment, waiver or
supplement in accordance with Article IX.
Upon receipt of such Officer's Certificate, the Trustee shall,
if at such time it is the Collateral Agent, or otherwise shall direct the
Collateral Agent, to execute, deliver or acknowledge any necessary or proper
instruments of termination, satisfaction or release to evidence the release of
any Collateral permitted to be released pursuant to this Indenture and the
Security Documents.
(b) No Collateral may be released from the Lien and
security interest created by the Security Documents pursuant to the provisions
of the Security Documents unless the Officer's Certificate required by this
Section 10.03 has been delivered to the Collateral Agent or such release is made
in accordance with Section 10.08.
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(c) At any time when a Default or Event of Default has
occurred and is continuing and the maturity of the Notes has been accelerated
(whether by declaration or otherwise), no release of Collateral pursuant to the
provisions of the Security Documents will be effective as against the Holders
unless consented to by each of the Holders.
(d) The release of any Collateral from the terms of this
Indenture and the Security Documents shall not be deemed to impair the security
under this Indenture in contravention of the provisions hereof if and to the
extent the Collateral is released pursuant to the terms of the Security
Documents and this Indenture. To the extent applicable, the Company will cause
TIA Section 313(b), relating to reports, and TIA Section 314(d), relating to the
release of property or securities from the Lien and security interest of the
Security Documents and relating to the substitution therefor of any property or
securities to be subjected to the Lien and security interest of the Security
Documents, to be complied with. Any certificate or opinion required by TIA
Section 314(d) may be made by an Officer of the Company except in cases where
TIA Section 314(d) requires that such certificate or opinion be made by an
independent Person, which Person will be an independent engineer, appraiser or
other expert selected or approved by the Trustee and the Collateral Agent in the
exercise of reasonable care.
10.04. Certificates and Opinions of Counsel. To the extent
applicable, the Company will furnish to the Trustee and the Collateral Agent,
prior to each proposed release of Collateral pursuant to the Security Documents:
(a) all documents required by TIA Section 314(d); and
(b) an Opinion of Counsel, which may be rendered by
internal counsel to the Company, to the effect that such accompanying documents
constitute all documents required by TIA Section 314(d).
The Trustee may, to the extent permitted by Sections 7.01 and 7.02, accept as
conclusive evidence of compliance with the foregoing provisions the appropriate
statements contained in such documents and such Opinion of Counsel.
10.05. Certificates of the Trustee. In the event that the
Company wishes to release Collateral in accordance with the Security Documents
at a time when the Trustee is not itself also the Collateral Agent and have
delivered the certificates and documents required by the Security Documents and
Sections 10.03 and 10.04, the Trustee will determine whether it has received all
documentation required by TIA Section 314(d) in connection with such release
and, based on such determination and the Opinion of Counsel delivered pursuant
to Section 10.04(b), will deliver a certificate to the Collateral Agent setting
forth such determination.
10.06. Authorization of Actions to Be Taken by the Trustee
Under the Security Documents. Subject to the provisions of Section 7.01 and
7.02, the Trustee may, in its sole discretion and without the consent of the
Holders, take, on behalf of the Holders, or direct, on behalf of the Holders,
the Collateral Agent to take, all actions it deems necessary or appropriate in
order to:
(a) enforce any of the terms of the Security Documents;
and
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(b) collect and receive any and all amounts payable in
respect of the Obligations of the Company and the Guarantors hereunder
The Trustee will have power to institute and maintain such suits and proceedings
as it may deem expedient to prevent any impairment of the Collateral by any acts
that may be unlawful or in violation of the Security Documents or this
Indenture, and such suits and proceedings as the Trustee may deem expedient to
preserve or protect its interests and the interests of the Holders in the
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the security interest hereunder or be prejudicial to the interests
of the Holders or of the Trustee).
10.07. Authorization of Receipt and Distribution of Funds by
the Trustee Under the Security Documents. The Trustee is authorized to receive
any funds for the benefit of the Holders distributed under the Security
Documents, and to make further distributions of such funds to the Holders
according to the provisions of this Indenture.
10.08. Termination of Security Interest. The Trustee will, at
the request of the Company, deliver a certificate to the Collateral Agent
stating that such Obligations have been paid in full, and instruct the
Collateral Agent to release the Liens securing the Obligations pursuant to this
Indenture and the Security Documents upon (1) payment in full of the principal
of, premium, if any, accrued and unpaid interest on the Notes and all other
Obligations under this Indenture, the Guarantees and the Security Documents that
are due and payable at or prior to the time such principal, premium, accrued and
unpaid interest are paid, (2) a satisfaction and discharge of this Indenture as
described in Article VIII or (3) a legal defeasance or covenant defeasance as
described in Article VIII. Notwithstanding the provisions of Section 10.03(b),
upon receipt of such instruction, the Trustee, if it is the Collateral Agent,
shall, or, if it is not the Collateral Agent, shall request the Collateral Agent
to, execute, deliver or acknowledge any necessary or proper instruments of
termination, satisfaction or release to evidence the release of all such Liens.
10.09. Trustee Serving as Collateral Agent; Amendments or
Supplements to, or Replacements of, the Security Documents. (a) If the Trustee
shall become the Collateral Agent, it shall be authorized to appoint
co-Collateral Agents as necessary in its sole discretion. Except as otherwise
explicitly provided herein or in the Security Documents, neither the Trustee nor
any of its respective officers, directors, employees or agents shall be liable
for failure to demand, collect or realize upon any of the Collateral or for any
delay in doing so or shall be under any obligation to sell or otherwise dispose
of any Collateral upon the request of any other Person or to take any other
action whatsoever with regard to the Collateral or any part thereof. The Trustee
shall be accountable only for amounts that it actually receives as a result of
the exercise of such powers, and neither the Trustee nor any of its officers,
directors, employees or agents shall be responsible for any act or failure to
act hereunder, except for its own willful misconduct, negligence or bad faith.
(b) The Trustee, is authorized and directed to (i) if the
Trustee shall become the Collateral Agent, enter into the Security Documents,
(ii) bind the Holders on the terms as set
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forth in the Security Documents and (iii) perform and observe its obligations
under the Security Documents.
ARTICLE XI
GUARANTEES
11.01. Guarantees. (a) Each Guarantor hereby jointly and
severally irrevocably and unconditionally Guarantees, as a primary obligor and
not merely as a surety, to each Holder and to the Trustee and its successors and
assigns the full and punctual payment when due, whether at Stated Maturity, by
acceleration, by redemption or otherwise, of all obligations of the Company
under this Indenture (including obligations to the Trustee) and the Notes,
whether for payment of principal of, premium, if any, or interest on the Notes
and all other monetary obligations of the Company under this Indenture and the
Notes, whether for fees, expenses, indemnification or otherwise (all the
foregoing being hereinafter collectively called the "Guaranteed Obligations").
Each Guarantor further agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice or further assent from each such
Guarantor, and that each such Guarantor shall remain bound under this Article XI
notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of
payment from and protest to the Company of any of the Guaranteed Obligations and
also waives notice of protest for nonpayment. Each Guarantor waives notice of
any default under the Notes or the Guaranteed Obligations. The obligations of
each Guarantor hereunder shall not be affected by (i) the failure of any Holder
or the Trustee to assert any claim or demand or to enforce any right or remedy
against the Company or any other Person under this Indenture, the Notes or any
other agreement or otherwise; (ii) any extension or renewal of any thereof;
(iii) any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Notes or any other agreement; (iv) the release
of any security held by any Holder or the Trustee for the Guaranteed Obligations
or any of them; (v) the failure of any Holder or Trustee to exercise any right
or remedy against any other Guarantor; or (vi) any change in the ownership of
such Guarantor, except as provided in Section 11.03.
(c) Each Guarantor hereby waives any right to which it
may be entitled to have its obligations hereunder divided among the Guarantors,
such that such Guarantor's obligations would be less than the full amount
claimed. Each Guarantor hereby waives any right to which it may be entitled to
have the assets of the Company first be used and depleted as payment of the
Company's or such Guarantor's obligations hereunder prior to any amounts being
claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives
any right to which it may be entitled to require that the Company be sued prior
to an action being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Guarantee
herein constitutes a guarantee of payment when due (and not a guarantee of
collection) and waives any right to require that any resort be had by any Holder
or the Trustee to any security held for payment of the Guaranteed Obligations.
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(e) Except as expressly set forth in Sections 8.01(b),
11.02 and 11.03, the obligations of each Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason
(other than payment of the Guaranteed Obligations in full), including any claim
of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Guarantor herein shall not be discharged or
impaired or otherwise affected by the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any remedy under this Indenture, the
Notes or any other agreement, by any waiver or modification of any thereof, by
any default, failure or delay, willful or otherwise, in the performance of the
Guaranteed Obligations, or by any other act or thing or omission or delay to do
any other act or thing which may or might in any manner or to any extent vary
the risk of any Guarantor or would otherwise operate as a discharge of any
Guarantor as a matter of law or equity.
(f) Each Guarantor agrees that its Guarantee shall remain
in full force and effect until payment in full of all the Guaranteed
Obligations. Each Guarantor further agrees that its Guarantee herein shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of, premium, if any, or interest on
any Guaranteed Obligation is rescinded or must otherwise be restored by any
Holder or the Trustee upon the bankruptcy or reorganization of the Company or
otherwise.
(g) In furtherance of the foregoing and not in limitation
of any other right which any Holder or the Trustee has at law or in equity
against any Guarantor by virtue hereof, upon the failure of the Company to pay
the Guaranteed Obligation when and as the same shall become due, whether at
maturity, by acceleration, by redemption or otherwise, each Guarantor hereby
promises to and shall, upon receipt of written demand by the Trustee, forthwith
pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal
to the sum of (i) the unpaid amount of such Guaranteed Obligations and (ii)
accrued and unpaid interest on such Guaranteed Obligations then due and owing
(but only to the extent not prohibited by law).
(h) Each Guarantor agrees that it shall not be entitled
to any right of subrogation in relation to the Holders in respect of any
Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed
Obligations. Each Guarantor further agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (i) the maturity of the
Guaranteed Obligations guaranteed hereby may be accelerated as provided in
Article VI for the purposes of any Guarantee herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Guaranteed Obligations guaranteed hereby, and (ii) in the event of any
declaration of acceleration of such Guaranteed Obligations as provided in
Article VI, such Guaranteed Obligations (whether or not due and payable) shall
forthwith become due and payable by such Guarantor for the purposes of this
Section 11.01.
(i) Each Guarantor also agrees to pay any and all
reasonable costs and expenses (including reasonable attorneys' fees and
expenses) incurred by the Trustee or any Holder in enforcing any rights under
this Section 11.01; provided that the Guarantors shall not be obligated to pay
for more than one primary counsel and one local counsel for the Trustee and the
Holders collectively.
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(j) Upon request of the Trustee, each Guarantor shall
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of this
Indenture.
11.02. Limitation on Liability. Any term or provision of this
Indenture to the contrary notwithstanding, the maximum aggregate amount of the
Guaranteed Obligations guaranteed hereunder by any Guarantor shall not exceed
the maximum amount that can be hereby guaranteed without rendering this
Indenture, as it relates to such Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
11.03. Releases of Guarantees. A Guarantee may be released
without any action required on the part of the Trustee or any Holder as provided
hereby. Upon the request of the Company pursuant to an Officer's Certificate
certifying that all conditions precedent hereunder have been met and without the
consent of any Holder, a Guarantee may be released under any one of the
following circumstances:
(a) (i) if all of the Capital Stock of, or other equity
interests in, or all or substantially all of the assets of such Guarantor is
sold or otherwise disposed of (including by way of merger or consolidation) to a
Person other than any of the Company, the Parent, or another Guarantor or (ii)
if such Guarantor ceases to be a Restricted Subsidiary, and the Company
otherwise complies, to the extent applicable, with Sections 4.06 and 5.01; or
(b) if the Parent or the Company designates such
Guarantor as an Unrestricted Subsidiary in accordance with the provisions of
this Indenture; or
(c) if the Capital Stock of such Guarantor (that owns one
or more FCC wireless licenses and does not own any other material assets)
becomes subject to a Permitted Lien pursuant to clause (xvii) of the definition
of "Permitted Liens."
Upon delivery by the Company to the Trustee of an Officer's
Certificate and an Opinion of Counsel, which may be rendered by internal counsel
to the Company, to the effect that such release was made by the Company in
accordance with the provisions of this Indenture, the Trustee will execute any
documents reasonably required in order to evidence the release of any Guarantor
from its obligations under its Guarantee.
Any Guarantor not released from its obligations under its
Guarantee will remain liable for the full amount of principal of, premium, if
any, and interest on the Notes and for the other obligations of any Guarantor
under this Indenture as provided in this Article XI.
11.04. Successors and Assigns. This Article XI shall be
binding upon each Guarantor and its successors and assigns and shall inure to
the benefit of the successors and assigns of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder or the Trustee,
the rights and privileges conferred upon that party in this Indenture and in the
Notes shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions of this Indenture.
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11.05. No Waiver. Neither a failure nor a delay on the part of
either the Trustee or the Holders in exercising any right, power or privilege
under this Article XI shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article XI at law,
in equity, by statute or otherwise.
11.06. Modification. No modification, amendment or waiver of
any provision of this Article XI, nor the consent to any departure by any
Guarantor therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Trustee, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice to or demand on any Guarantor in any case shall entitle such Guarantor to
any other or further notice or demand in the same, similar or other
circumstances.
11.07. Execution of Supplemental Indenture for Future
Guarantors. Each Subsidiary which is required to become a Guarantor pursuant to
Section 4.11 shall promptly execute and deliver to the Trustee a supplemental
indenture in the form of Exhibit B hereto pursuant to which such Subsidiary
shall become a Guarantor under this Article XI and shall guarantee the
Guaranteed Obligations. Concurrently with the execution and delivery of such
supplemental indenture, the Company shall deliver to the Trustee an Opinion of
Counsel, which may be rendered by internal counsel to the Company, and an
Officer's Certificate to the effect that such supplemental indenture has been
duly authorized, executed and delivered by such Subsidiary and that, subject to
the application of bankruptcy, insolvency, moratorium, fraudulent conveyance or
transfer and other similar laws relating to creditors' rights generally and to
the principles of equity, whether considered in a proceeding at law or in
equity, the Guarantee of such Guarantor is a legal, valid and binding obligation
of such Guarantor, enforceable against such Guarantor in accordance with its
terms and as to such other matters as the Trustee may reasonably request.
11.08. Non-Impairment. The failure to endorse a Guarantee on
any Note shall not affect or impair the validity thereof.
ARTICLE XII
MISCELLANEOUS
12.01. Trust Indenture Act Controls. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "incorporated provision") included in
this Indenture by operation of, TIA Sections 310 to 318, inclusive, such imposed
duties or incorporated provision shall control.
12.02. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
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if to the Company:
Cricket Communications, Inc.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: General Counsel
with a copy to:
Xxxxxx & Xxxxxxx LLP
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
if to the Trustee:
Xxxxx Fargo Bank, National Association
Corporate Trust Services
Sixth St. and Marquette Ave.
MAC X0000-000
Xxxxxxxxxxx, XX 00000
Attention: Cricket Communications Administrator
Facsimile: (000) 000-0000
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder shall be
mailed, first class mail, to the Holder at the Holder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
12.03. Communication by Holders with Other Holders. Holders
may communicate pursuant to TIA Section 312(b) with other Holders with respect
to their rights under this Indenture or the Notes. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA Section 312(c).
12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture (other than a request to
authenticate the Original Notes in accordance with this Indenture), the Company
shall furnish to the Trustee:
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(a) an Officer's Certificate in form reasonably
satisfactory to the Trustee (which must include the statements set forth in
Section 12.05) stating that, in the opinion of the signer, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b) an Opinion of Counsel, which may be rendered by
internal counsel to the Company, in form reasonably satisfactory to the Trustee
stating that, in the opinion of such counsel, all such conditions precedent have
been complied with.
12.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture (other than pursuant to Section 4.09) shall
include:
(a) a statement that the individual making such
certificate or opinion has read such covenant or condition;
(b) brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of such individual,
he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of
such individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual matters on an
Officer's Certificate or on certificates of public officials.
12.06. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
12.07. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or other day on which banking institutions are not required by law or
regulation to be open in the State of New York or the state where the principal
office of the Trustee is located. If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a regular record date is a
Legal Holiday, the record date shall not be affected.
12.08. GOVERNING LAW. THIS INDENTURE AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
12.09. No Recourse Against Others. No past, present or future
director, officer, employee, stockholder, incorporator or member, as such, of
the Company or any of the Guarantors, shall have any liability for any
obligations of the Company or any of the Guarantors
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under the Notes, this Indenture, the Guarantees, or the Security Documents or
for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Note, each Holder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Notes. The waiver may not be effective to waive liabilities under
the federal securities laws.
12.10. Successors. All agreements of the Company and each
Guarantor in this Indenture and the Notes shall bind its successors, except as
otherwise provided in Section 11.03 hereof with respect to the Guarantors. All
agreements of the Trustee in this Indenture shall bind its successors.
12.11. Counterpart Originals. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.
12.12. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
CRICKET COMMUNICATIONS, INC.
By: ____________________________________________
Name:
Title:
LEAP WIRELESS INTERNATIONAL, INC.
By: ____________________________________________
Name:
Title:
[LIST SUBSIDIARIES]
By: ____________________________________________
Name:
Title:
XXXXX FARGO BANK,
NATIONAL ASSOCIATION,
as Trustee
By: ____________________________________________
Name:
Title:
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EXHIBIT A
[FORM OF FACE OF NOTE]
[FOR PURPOSES OF SECTIONS 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), THIS SECURITY HAS ORIGINAL ISSUE DISCOUNT. FOR PURPOSES OF SECTION
1273 OF THE CODE, THE ISSUE PRICE IS $_____ AND THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT IS $______, IN EACH CASE PER $1,000 PRINCIPAL AMOUNT AT MATURITY OF
THIS SECURITY. THE ISSUE DATE OF THIS SECURITY IS _____________, 2004. FOR
PURPOSES OF SECTION 1272 OF THE CODE, THE YIELD TO MATURITY (COMPOUNDED
SEMI-ANNUALLY) IS ____% PER ANNUM.]
[Global Notes Legend](1)
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST XXXXXX."
X-0
No.________ $__________
13% Senior Secured Pay-in-Kind Note due 2011
CUSIP No. ______
Cricket Communications, Inc., a Delaware corporation, promises to pay
to [Cede & Co.], or registered assigns, the principal sum [of Dollars] [listed
on the Schedule of Increases or Decreases in Global Note attached hereto](2) on
_______, 2011.
Interest Payment Dates: _________ and _________.
Record Dates: _________ and __________.
Additional provisions of this Note are set forth on the other side of
this Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
CRICKET COMMUNICATIONS, INC.
By: ____________________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
XXXXX FARGO BANK,
NATIONAL ASSOCIATION,
as Trustee, certifies that this is one of
the Notes referred to in the Indenture.
By: _____________________________________________
Authorized Signatory
____________
(1) If the Note is to be issued in global form, add the Global Notes Legend
and the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL NOTES -
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE".
(2) Use the Schedule of Increases and Decreases language if Note is in
Global Form.
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[FORM OF REVERSE SIDE OF NOTE]
13% SENIOR SECURED PAY-IN-KIND NOTE DUE 2011
1. INTEREST
Cricket Communications, Inc., a Delaware corporation (such entity and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Note at the rate per annum shown above. The Company shall pay interest
semiannually on ________ and _________ of each year, commencing on ____________,
2004. Interest on the Notes shall accrue from the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid or
duly provided for, from ___________, 2004 until the principal hereof is due.
Interest shall be computed on the basis of a 360-day year comprised of twelve
30-day months.
2. METHOD OF PAYMENT
The Company shall pay interest on the Notes (except defaulted interest)
to the Persons who are registered Holders of Notes at the close of business on
the _________ or __________ next preceding the interest payment date even if
Notes are canceled after the record date and on or before the interest payment
date. Holders must surrender Notes to a Paying Agent to collect principal
payments. The Company shall pay principal, premium and interest, in money of the
United States of America that at the time of payment is legal tender for payment
of public and private debts; provided, however, that interest of up to 12% per
annum may, at the Company's election, be paid, on each of the first four
regularly scheduled Interest Payment Dates only, by issuing additional Notes
("PIK Notes") as set forth in the Indenture described below. Payments payable in
cash in respect of the Notes represented by a Global Note (including principal,
premium and interest) shall be made by wire transfer of immediately available
funds to the accounts specified by The Depository Trust Company. The Company
will make all payments payable in cash in respect of a certificated Note
(including principal, premium and interest) by mailing a check to the registered
address of each Holder thereof; provided, however, that payments payable in cash
on the Notes may also be made, in the case of a Holder of at least $1,000,000
aggregate principal amount of Notes, by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Trustee or the Paying
Agent to such effect designating such account no later than 30 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).
3. PAYING AGENT AND REGISTRAR
Initially, XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking
association (the "Trustee"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent, Registrar or co-registrar without
notice. The Company or any of its domestically incorporated Wholly Owned
Restricted Subsidiaries may act as Paying Agent, Registrar or co-registrar.
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4. INDENTURE
The Company issued the Notes under an Indenture dated as of _________,
2004 (the "Indenture"), among the Company, Leap Wireless International, Inc., a
Delaware corporation, as guarantor (the "Parent"), [List Subsidiaries], as
guarantors (collectively with the Parent, the "Guarantors") and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA").
Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Notes are subject to all terms and provisions of
the Indenture, and Holders are referred to the Indenture and the TIA for a
statement of such terms and provisions.
The Notes are senior secured obligations of the Company. The Notes
include the Original Notes and any PIK Notes issued pursuant to the Indenture.
The Original Notes and the PIK Notes are treated as a single class of securities
under the Indenture. The Indenture imposes certain limitations on the ability of
the Company and its Restricted Subsidiaries to, among other things, make certain
Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
suffer or grant Liens, enter into or permit certain transactions with Affiliates
and make asset dispositions. The Indenture also imposes limitations on the
ability of the Company and each Guarantor to consolidate or merge with or into
any other Person or convey, transfer or lease all or substantially all of the
property of the Company.
To guarantee the due and punctual payment of the principal, premium and
interest, if any, on the Notes and all other amounts payable by the Company
under the Indenture and the Notes when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Notes and the Indenture, the Guarantors have, jointly and severally,
unconditionally guaranteed the Guaranteed Obligations on a senior secured basis
pursuant to the terms of the Indenture.
The Notes, the Guarantees and all other Obligations of the Company and
the Guarantors are secured on a first-priority basis (subject to Permitted
Liens) by the Liens created by the Security Documents pursuant to, and subject
to the terms of, the Indenture.
5. OPTIONAL REDEMPTION
The Notes shall be redeemable at the option of the Company, in whole or
in part, on one or more occasions, on not less than 30 nor more than 60 days
prior notice, at the following redemption prices (expressed as percentages of
principal amount at maturity), plus accrued and unpaid interest to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date), if
redeemed during the 12-month period commencing on _________ of the years set
forth below:
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YEAR REDEMPTION PRICE
---- ----------------
2004 106.50%
2005 104.88%
2006 103.25%
2007 101.63%
2008 and thereafter 100.00%
6. SINKING FUND
The Notes are not subject to any sinking fund.
7. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Notes to be redeemed at his or her registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000. If money sufficient to pay the redemption price of and accrued and
unpaid interest on all Notes (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date interest
ceases to accrue on such Notes (or such portions thereof) called for redemption.
8. REPURCHASE OF NOTES AT THE OPTION OF HOLDERS UPON CHANGE OF
CONTROL OR CERTAIN ASSET SALES
Upon a Change of Control, any Holder of Notes will have the right,
subject to certain conditions specified in the Indenture, to cause the Company
to repurchase all or any part of the Notes of such Holder at a purchase price
equal to 101% of the principal amount of the Notes to be repurchased plus
accrued and unpaid interest to the date of repurchase (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date that is on or prior to the date of purchase) as
provided in, and subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Company will be
required to offer to purchase Notes upon the occurrence of certain events
following Asset Sales.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in registered form without coupons. The Original Notes
are in denominations of $100 and whole multiples of $100, and the PIK Notes are
in denominations of $100 and whole multiples of $100. A Holder may transfer or
exchange Notes in accordance with the Indenture. Upon any transfer or exchange,
the Registrar and the Trustee may require a Holder, among other things, to
furnish appropriate endorsements or transfer documents and to
A-5
pay any taxes required by law or permitted by the Indenture. The Registrar need
not register the transfer of or exchange any Notes selected for redemption
(except, in the case of a Note to be redeemed in part, the portion of the Note
not to be redeemed) or to transfer or exchange any Notes for a period of 15 days
prior to a selection of Notes to be redeemed or 15 days before an interest
payment date.
10. PERSONS DEEMED OWNERS
Except as provided in paragraph 2 hereof, the registered Holder of this
Note may be treated as the owner of it for all purposes.
11. UNCLAIMED MONEY
If money for the payment of principal, premium or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and the Guarantors and not to the Trustee for payment.
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time may terminate
some of or all its obligations under the Notes and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment
of principal, premium, if any, and interest on the Notes to redemption or
maturity, as the case may be.
13. AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions set forth in the Indenture, (a) the
Indenture, the Notes, the Guarantees or the Security Documents may be amended
without prior notice to any Holder but with the written consent of the Holders
of at least a majority in aggregate principal amount of the outstanding Notes
and (b) any default may be waived with the written consent of the Holders of at
least a majority in principal amount of the outstanding Notes. Subject to
certain exceptions set forth in the Indenture, without the consent of any
Holder, the Company and the Trustee may amend or supplement the Indenture, the
Notes, the Guarantees or the Security Documents (i) to cure any ambiguity,
omission, defect or inconsistency; (ii) to comply with Article V or Article XI
of the Indenture; (iii) to provide for uncertificated Notes in addition to or in
place of certificated Notes; provided, however, that the uncertificated Notes
are issued in registered form for purposes of Section 163(f) of the Code or in a
manner such that the uncertificated Notes are described in Section 163(f)(2)(B)
of the Code; (iv) to add additional Guarantees with respect to the Notes; (v) to
add to the covenants of the Company for the benefit of the Holders or to
surrender any right or power herein conferred upon the Company; (vi) to make any
change that does not adversely affect the rights of any Holder; (vii) to comply
with any requirement of the Commission in connection with qualifying, or
maintaining the qualification of, this Indenture under the TIA; or (vii) if
necessary, in connection with any addition or release of Collateral permitted
under the terms of the Indenture or the Security Documents.
A-6
14. DEFAULTS AND REMEDIES
If an Event of Default occurs (other than an Event of Default relating
to certain events of bankruptcy, insolvency or reorganization of the Company,
the Parent or a Restricted Subsidiary) and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the outstanding Notes may declare
the principal of, premium, if any, and accrued but unpaid interest on all the
Notes to be due and payable. If an Event of Default relating to certain events
of bankruptcy, insolvency or reorganization of the Company, the Parent or a
Restricted Subsidiary occurs, the principal of and interest on all the Notes
shall become immediately due and payable without any declaration or other act on
the part of the Trustee or any Holders. Under certain circumstances, the Holders
of a majority in principal amount of the outstanding Notes may rescind any such
acceleration with respect to the Notes and its consequences.
If an Event of Default occurs and is continuing, the Trustee shall be
under no obligation to exercise any of the rights or powers under the Indenture
at the request or direction of any of the Holders unless such Holders have
offered to the Trustee reasonable indemnity or security against any loss,
liability or expense and certain other conditions are complied with. Except to
enforce the right to receive payment of principal, premium (if any) or interest
when due, no Holder may pursue any remedy with respect to the Indenture or the
Notes unless (i) such Holder has previously given the Trustee notice that an
Event of Default is continuing, (ii) Holders of at least 25% in principal amount
of the outstanding Notes have requested the Trustee in writing to pursue the
remedy, (iii) such Holders have offered the Trustee reasonable security or
indemnity against any cost, liability or expense, (iv) the Trustee has not
complied with such request within 60 days after the receipt of the request and
the offer of security or indemnity and (v) the Holders of a majority in
principal amount of the outstanding Notes have not given the Trustee a direction
inconsistent with such request within such 60-day period. Subject to certain
restrictions, the Holders of a majority in principal amount of the outstanding
Notes are given the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. The Trustee, however, may refuse to follow any
direction that conflicts with law or the Indenture or that the Trustee
determines is unduly prejudicial to the rights of any other Holder or that would
involve the Trustee in personal liability. Prior to taking any action under the
Indenture, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.
15. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS
No past, present or future director, officer, employee, stockholder,
incorporator or member, as such, of the Company or any of the Guarantors, shall
have any liability for any obligations of the Company or any of the Guarantors
under the Notes, this Indenture, the
A-7
Guarantees or the Security Documents or for any claim based on, in respect of or
by reason of such obligations or their creation. By accepting a Note, each
Holder shall waive and release all such liability. The waiver and release shall
be part of the consideration for the issue of the Notes.
17. AUTHENTICATION
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
20. CUSIP NUMBERS
The Company may have caused CUSIP numbers to be printed on the Notes
and directed the Trustee to use such CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of any such
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
THE COMPANY WILL FURNISH TO ANY HOLDER OF NOTES UPON WRITTEN REQUEST
AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT THE
TEXT OF THIS NOTE.
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Company.
The agent may substitute another to act for him.
______________________________________________________________________
Date: ________________ Your Signature: _____________________
______________________________________________________________________
Sign exactly as your name appears on the other side of this Note. Signature must
be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.
A-9
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE*
The initial principal amount of this Global Note is $[ ]. The following
increases or decreases in this Global Note have been made:
Amount of decrease Amount of increase Principal Signature of
in Principal Amount in Principal Amount Amount of Authorized
at Maturity of this at Maturity of this Global Note at Officer of Trustee
Date of Exchange Global Note Global Note Maturity or Custodian
---------------- ------------------- ------------------- -------------- ------------------
*This schedule should be included only if the Note is issued in global form.
A-10
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS NOTE PURCHASED BY THE COMPANY
PURSUANT TO SECTION 4.06 (ASSET DISPOSITION) OR 4.08 (CHANGE OF CONTROL) OF THE
INDENTURE, CHECK THE BOX:
ASSET DISPOSITION [ ] CHANGE OF CONTROL [ ]
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS NOTE PURCHASED BY THE
COMPANY PURSUANT TO SECTION 4.06 OR 4.08 OF THE INDENTURE, STATE THE AMOUNT
($1,000 OR AN INTEGRAL MULTIPLE THEREOF):
$
DATE: __________________ YOUR SIGNATURE: __________________
(SIGN EXACTLY AS YOUR NAME APPEARS
ON THE OTHER SIDE OF THE NOTE)
SIGNATURE
GUARANTEE:_______________________________________________________
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A RECOGNIZED SIGNATURE GUARANTY
MEDALLION PROGRAM OR OTHER SIGNATURE GUARANTOR ACCEPTABLE TO THE TRUSTEE.
A-11
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of
____________________, among [GUARANTOR] (the "New Guarantor"), a subsidiary of
Leap Wireless International, Inc., a Delaware corporation (the "Parent"),
Cricket Communications, Inc., a Delaware corporation (the "Company"), Parent, as
guarantor, [List Subsidiaries], as guarantors (collectively with Parent, the
"Existing Guarantors") and Xxxxx Fargo Bank, National Association, a national
banking association, as trustee under the indenture referred to below (the
"Trustee").
W I T N E S S E T H:
WHEREAS the Company and the Existing Guarantors have heretofore
executed and delivered to the Trustee an Indenture (the "Indenture") dated as of
_________, 2004, providing for the issuance of 13% Senior Secured Pay-in-Kind
Notes due 2011 (the "Notes");
WHEREAS Section 4.11 of the Indenture provides that under certain
circumstances the Company is required to cause the New Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall unconditionally guarantee all the Company's obligations under
the Notes pursuant to a Guarantee on the terms and conditions set forth herein;
and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the
Company and the Existing Guarantors are authorized to execute and deliver this
Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Company, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the Notes
as follows:
1. Agreement to Guarantee. The New Guarantor hereby agrees,
jointly and severally with all the Existing Guarantors, to unconditionally
guarantee the Company's obligations under the Notes on the terms and subject to
the conditions set forth in Article XI of the Indenture and to be bound by all
other applicable provisions of the Indenture and the Notes.
2. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Notes heretofore or
hereafter authenticated and delivered shall be bound hereby.
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
B-1
4. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
5. Counterparts. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
6. Effect of Headings. The Section headings herein are for
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
By: __________________________________
Name:
Title:
CRICKET COMMUNICATIONS, INC.
By: __________________________________
Name:
Title:
LEAP WIRELESS INTERNATIONAL, INC.
By: __________________________________
Name:
Title:
[LIST EXISTING SUBSIDIARIES]
By: __________________________________
Name:
Title:
B-2
